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Ignorance of the Law IS a Defense? WHO KNEW?

Who knew?

I’m afraid I have some serious explaining to do. Some of my former clients are probably not happy with me right now. If they follow the news, they just learned that I gave them bad advice.

Until yesterday this Stanford Lawyer actually thought that ignorance of the law was NOT a defense!

You see, yesterday I saw no less of a personage than the Speaker of the House of The United States House of Representatives, Paul Ryan, say that ignorance of the law is a defense… IF you are the President and IF you are a Republican, like him.

WOW, as the Donald himself might tweet. Again, Who Knew? I sure didn’t.

For years I have had to tell people that they were technically guilty of Conspiracy to Distribute when they told the undercover cop calling them at all hours to buy cocaine that they should call their neighbor, NOT them, if they needed drugs.

Or that when High School Senior Boys viewed and saved those sexually explicit photos their underage girlfriends sent them that they were guilty of Possession of Child Pornography.

Or that just because they felt fine, it was still Driving Under the Influence when the breath test registered a reading that put them over the line.

The list is endless. Not knowing that these actions were crimes was never a defense.

But Ryan said that Trump should be excused, because how could a new guy in town like him possibly know about some arcane and obscure “Protocol” requirement like obstruction of justice?

Again, WOW. That’s funny. I was pretty sure that Obstruction was a pretty common law. If Trump ever read my blog he would know that. Martha Stewart sure does.

She spent a year in prison for obstructing a Government Investigation, even though that was the only crime she committed. She probably didn’t realize that fudging her answers about her stock dealings would lead to that. But she still did some serious time.

Oh, and guess who prosecuted her? It’s a small world, after all.

Here, when Trump asked Martha’s prosecutor to drop the investigation of Michael Flynn, it was okay, apparently. I submit that that this remains to be seen.

It is true that there are many variants of Obstruction. Or Obstructing, depending on what statute you are reading. I mean, they can’t even agree on what to call it.

Some versions require the specific use of force, or destruction of documents before the person involved is Guilty. Some don’t. But the concept is consistent.

And, for sure, what to call the crime is not the point. The point is that intentionally interfering or impeding a criminal investigation is a crime. Period.

Now that does not mean Trump is Guilty. As we defense attorneys like to argue in our closing arguments, he may not be totally Innocent, but that does not mean he is Guilty.

Innocence is one extreme, Guilt the other. In between we have a whole lot of analytical real estate known best as “Not Guilty”. In Scotland they call this Not Proven, a much better approach to make it clear what must be proved and by how much evidence.

Whether or not he is guilty should probably hinge on his intent, NOT his ignorance of the law. That is no defense, IMHO.

There have been some exceptions to the way this concept is applied, of course. But the fact remains that interfering intentionally with a criminal investigation is a crime and being a newbie is not a defense to that crime.

I have been threatened with Obstruction; by aggressively questioning witnesses, I have made them feel uncomfortable. Oh, Diddums. Poor widdle liars. I feel so bad about that. Not.

But I am careful when I interview people. You never want to cross a line there. Trump should know this. It’s not as if he has never been involved in a lawsuit or anything.

Still, I have known that my work demanded that I put witness testimony under a harsh revealing light, to get to the Truth, as required of me by the Sixth Amendment. But no Constitutional requirement allows Trump to do what he did. He was wrong. Whether he was criminally wrong is still up for grabs. But ignorance of the law as a defense? Uh…

No.

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