Musing about law, books, and politics

The Myth of the Smoking Gun

[View as a Twitter thread]

Was Cohen in Prague?

Spoiler: It doesn’t really matter.

The report that Cohen was in Prague ignited a frenzy this past week, sparking the question: Do we at last have a smoking gun?

1/ The conservative American Thinker argued there there’s still no “smoking gun” and so there’s nothing to implicate Trump.

2/ Daily Beast, too, reported that if Cohen was in Prague there were “big implications.” If not, it “significantly lessens the odds that Mueller can prove a conspiracy case . . . ”

3/ Trump himself has gotten into the act, saying “Democrats” can’t find a “smocking” gun, so no “collusion.” (Notice he equates prosecutors and investigators with Democrats. All of this is deliberate.)

4/ I think many people believe that a smoking gun is necessary, partly because every time circumstantial evidence emerges linking Trump to Russia, Trump shouts “no collusion!” The underlying problem is confusion about direct v. circumstantial evidence.

5/ I think the direct v. circumstantial evidence confusion is being deliberately sown by Trump and right wing allies, so let’s sort through this. Direct evidence directly links a person to the crime, without the need for any inference.

6/ Direct evidence is the proverbial smoking gun. Circumstantial evidence IMPLIES the person committed a crime. …Every reader of crime fiction knows what circumstantial evidence is, and that most complex crimes are proven with circumstantial evidence.

7/ For many crimes, direct evidence doesn’t exist. The law doesn’t distinguish between direct and circumstantial evidence.Both are admissible and can be used to prove a crime. As every defense lawyer knows, even evidence that appears direct can be still be shown as unreliable.

8/ Like this: “Yes, your honor. My client was caught on camera pointing that gun at the bank teller during the bank robbery. But we will show that the real villains were holding HIM at gunpoint, and he committed the robbery under duress and threat of his own life.”

9/ So even if Cohen was in Prague, expect some theory to emerge showing it wasn’t what it appeared. This doesn’t mean there isn’t direct evidence. There may well be. But it isn’t necessary.

10/ One other comment: Not all evidence floating out there is admissible in court, which is why some legal scholars advise not getting “ahead of the evidence” or “ahead of our skis.” Hearsay, for example, is not admissible in court, but is often used in newspaper reporting

11/ So to be safe, let’s limit ourselves to statements made in public, and facts given in the Mueller docs. Facts in the Mueller docs are highly reliable because they’re the result of an FBI investigation and have been vetted and confirmed by top prosecutors.

12/ Also remember the reason we have juries: Because it’s rarely easy to determine exactly what happened. Ultimately jurors determine the facts, and cases are tried in court (or, for removal from office, in Congress) not the press. But we can still play “was there a crime?”

13/ With that preamble, I’ll give 3 easy examples of crimes for which plenty of evidence exists in the Mueller docs and public statements: Conspiracy (371), Aiding and abetting, and accessory after the fact. For Conspiracy (371) start reading at tweet 5:

14/ “Is Trump an accessory after the fact” (spoiler: yes)

15/ Did Trump aid and abet cyber crimes? (Spoiler: Yes)

16/ How about: Did Trump aid and abet a campaign finance law violation? …There is more, of course. Lots more. Just start reading the Mueller docs themselves. The circumstantial evidence is overwhelming.