On Conspiracy

In comments, Harpie went back to Elizabeth de la Vega’s summary of conspiracy.

Since Eureka brought this up above, I figured it might be timely to post it again:

Conspiracy Law – Eight Things You Need to Know.
One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
Three: All co-conspirators have to agree on at least one object of the conspiracy.
Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

de la Vega has been consistently good on conspiracy going back to the first failed impeachment effort and the lead up to it. I posted this at least once before, think on a post I penned, but not sure, so am going to put this out here again.

At any rate, here are a set of model jury instructions (that I have previously patterned off of for real trials) for a conspiracy case. They are for a drug case, but conspiracy is conspiracy, and the law is pretty much the same, and has long been. What Harpie cited from de la Vega is correct. But to give you a look at how it actually goes down in a court, check out actual pattern jury instructions, because real instructions are always the guide in a real criminal trial. Substitute in the elements for 18 USC §373 and 18 USC §2101, or any of the other various putative crimes being discussed ad nauseam and you will get the picture.

As you read through them, keep in mind the question of “what holes could a competent criminal defense attorney drive a truck through here given a beyond a reasonable doubt burden?”

Now would Trump acquire an actually competent criminal defense attorney were, in the unlikely event he is really charged? Now there is a great question! But, if he were to, there are currently still a LOT of holes. People are getting ahead of themselves. Read the instructions, they scan pretty fast. But keep in mind that once you charge and put a defendant, any defendant, on trial, things are not as easy as they are here or on social media.

46 replies
  1. Badger Robert says:

    Good start. Thanks.
    Your posting demonstrates why the usual tactical plan is to start at the bottom and work upwards.
    And proceeding in that matter in the current circumstance keeps the fmr guy out of the news temporarily.

  2. John Paul Jones says:

    I think if Trump ever were charged, he’d get offers from excellent criminal defense attourneys simply because defending an ex-President on such charges would be a history-making case and many would want to be there, to be remembered in history (and maybe even to raise their local and time-bound profiles). Whether Trump would choose one of the good ones is the stickier question, given that he prefers ass-kissers to real talent – viz. his “cabinet meetings” where he would go around the table eliciting ass-smooching from all “his” officers.

    The jury instructions were enlightening. I hadn’t realized quite how detailed such were likely to be. Too much Perry Mason at a young, impressionable age.

    • BobCon says:

      We could see the same dance where legitimate lawyers sign on initially, until he makes impossible demands and then they drop out.

      • earlofhuntingdon says:

        Dropping out is harder to do in a crimina case. It requires court approval and carefully avoiding the appearance that it has anything to do with the client’s guilt or innocence. Bmaz can offer much more on the topic.

        The point is that that will make it harder for Trump to find competent counsel. Given the probability of shortfalls in Trump’s cashflow and severe drains on his cash on hand, any attorney should demand a sizeable retainer and pre-payment of expenses. Trump takes great pride in his career-long history of stiffing creditors, he never shuts his mouth or sticks to the terms of a retention agreement, which will further reduce the pool of available lawyers, competent or otherwise.

        • BobCon says:

          I agree it is harder, but I think Trump is fully capable of demanding his lawyers do something like forge documents.

          I could easily see senior partners taking the deal, poor junior associates getting stuck dealing with Sidney Powell types demanding they change dates on depositions to fit a timeline, the junior lawyers deciding they need to quit, and the senior partners finally begrudgingly agreeing that being part of easily provable fraud might be a problem for the continued viability of the firm.

        • timbo says:

          Ouch. That sounds like a scenario that would be hard to play out though this time. One would have to assume that Trump would be back in power in 2025 to even pull such a thing off… and that’s a tall ask at this point. Still, there does seem to be a lot of conniving going on of late so, alas, maybe that could be done? And that’s the problem—the Republic has sunk to the point that one has to wonder all the time about how much lower it can sink.

  3. harpie says:

    Thanks for taking up this subject, bmaz, and for the reality check!
    Now, I’m off to read the jury instructions.

  4. BobCon says:

    I know prosecutors often prefer to hold off on filing charges until they have a complete set of strong cases, and developing a case for conspiracy can take a lot of time.

    I’m inclined to think, however, that if they have strong evidence of an initial set of lower level crimes they should jump on them. If there is an obvious case for financial fraud around the post election fundraising or clear evidence that he was responsible for false court filings, I’m leaning toward indicting for that ASAP. Or for that matter something unrelated to his presidency that can get him under indictment, I would hate to see them wait.

    I know that political logic usually (and rightly) takes a backseat to the logic of building a comprehensive case, but I think in this situation there is strong public policy argument for moving quickly.

    • timbo says:

      Hmm. Seems unlikely to happen in this case unless political pressure outside of Washington was applied to prosecute. Right now there is some pressure in limited jurisdictions but no urgency at main DOJ yet… and almost certainly won’t be until there’s new leadership there… which is why Graham is dragging that process out as long as possible I would assume?

      The only good thing to say about any of this at the moment is that it is almost unimaginable how bad things would be now if Twitler’s regime hadn’t taken a significant hit of recent. But until Trump is knocked out of any ability to attain central power again, the Republic certainly seems in seriously increased jeopardy… not that that means we’re all suddenly safe from the forces that are hard to control in our country, just that the current most well-known leader would be gone from the radical right to rally to. Trump destroyed the GOP’s ability to not be a party of liars, opportunists, and third string thinkers.

  5. harpie says:

    Rep. Bennie Thompson of MS sues 1] Trump, [solely in his personal capacity], 2] Giuliani, 3] Proud Boys and 4] Oath Keepers [as organizations]:

    […] Plaintiff, the Honorable Bennie G. Thompson, Member of the United States House of Representatives, brings this action against the Defendants for conspiring to prevent him and other Members of Congress from discharging these official duties, in violation of 42 U.S.C. § 1985(1). Enacted as the “Ku Klux Klan Act” in 1871, Section 1985(1) was intended to protect against conspiracies, through violence and intimidation, that sought to prevent Members of Congress from discharging their official duties. The statute was enacted in response to violence and intimidation in which the Ku Klux Klan and other organizations were engaged during that time period. […]

    Marcy writes about it here, with links:

    And here’s Zoe Tillman with the full text of the section of the Ku Klux Klan Act, 42 USC 1985(1), that Thompson is invoking to sue Trump:

  6. Eureka says:

    The other thing (in addition to civil litigation and the preponderance of evidence standard ^ ) is that I’ve always understood that the feds wouldn’t bring a criminal case unless highly likely to succeed.

    So while it’s too early in the process and opaque (besides, as EW has frequently written, that extant cases have that conspiracy slotting within which to drop Trump) as to whether Trump would be charged for anything (besides that such is unlikely due to the comeuppance-free whimsies of his history), if they do bring charges would they bring any that a mack truck could plow through? Navigable by a competent defense (and aided by Trump’s lifelong habits), sure.

    TBH I more suspect that they might not try hard enough to render Trump as a criminal defendant, ~ a la Mueller, where Jr. was too dumb to charge. ~~shrug~~ Oh, wellz!

    Also, IRL you don’t get the jury instructions until you’ve heard the evidence. I have not heard the evidence. However I will read them out of order in this instance. ;)

    • bmaz says:

      No, in a real trial, you get initial jury instructions, and, then at the conclusion of evidence and arguments, final instructions. There are both.

      • Eureka says:

        Thanks — I have it pulled up but not read yet, you guys have a lot of accessory documents for us today. But prior to reading, I still doubt he sees criminal charges for reasons above (and not fully stated-tho some pointed to in comments on the prior post). If he makes it past unindicted co-conspirator I’ll be shocked (though in that instance would suspect they had a strong case).

  7. PeterS says:

    Thank you for this post. Reading the jury instructions, especially the “defendant’s connection” part, confirms my own instinctively cautious approach.

    In the recent Mike Lee post I tried to work out how Trump’s calls and tweets on the afternoon of 6 January shaded over from cynical opportunism to joining/aiding a conspiracy. 

    I am very prepared to be corrected, but I can’t help feeling that Trump was just as guilty at 2 pm that afternoon as he was at 8 pm. Guilty, for example, of inciting an insurrection (loosely speaking, being behind the conspiracy).

    Or, possibly, not guilty – in law though not in the moral universe I live in.

  8. OldTulsaDude says:

    Thanks to bmaz for posting these jury instructions. First time I have read such.

    Gives me chills to realize from the instructions that in a criminal prosecution someone’s freedom or confinement depends on which attorney can get 12 random citizens to believe the story they tell. It was also chilling to realize how hard it was for me to put aside my own prejudices against Donald Trump when reading and looking for holes in the conspiracy instructions.

  9. CD54 says:

    Trump’s historical trick, both in asset valuations and politics, is just to claim that he believes “something” in “someway” and he has an entitlement not to be challenged for a belief.

    eg. Trump: “I don’t believe telling thousands of people to march to the Capitol and delay the Certification is a crime. How can telling people to stand up for their rights be a crime? Therefor, there was no agreement, no conspiracy.”

    How can a bad faith, corrupt belief be pierced within a prosecution?

    Also, what about mob conspiracies (including furtherance of a group informally organized around committing crimes)? How have historical mob prosecutions closed the gaps and rebutted plausible deniability?

    • vicks says:

      The way you describe it, it reminds me of “Russia, if your listening…”
      Trump (most likely) wasn’t involved in the theft, but knew Russia had the stolen emails and was well aware they wanted to help him win the first election,
      This time Trump set the stage, but (most likely) wasn’t part of planning the actual crime.

  10. PhoneInducedPinkEye says:

    I can see how the solemnity of those instructions gets jurors to take it seriously. I have also seen news reports of juries who voted to acquit because they knew a possession charge would really screw someone’s life up, and it seems these instructions say you aren’t supposed to do that. Did those jurors just get lucky no one came after them?

    • bmaz says:

      Yeargh, maybe. Jurors are supposed to follow the instructions. If they do not, it is a problem. The second they do it to acquit one defendant, even if it is one you and I may want acquitted, it will be done twenty times to convict those we may not.

    • Epicurus says:

      PIPE, I’ve had the privilege of sitting on long term military special and general courts martial, i.e. same jury/different trials and on a few civilian juries, i.e. different juries/different trials. Unless someone has been on a jury it is difficult to understand the dynamics and interplay of the instructions jurors get, the evidence jurors receive, the arguments jurors heard, and the jurors’ view of the legitimacy of the law being applied. Each trial and each jury is unique in the way they deal with those things.

      • bmaz says:

        That is exactly right. And, man, jurors have their own take. Early on, I used to talk to them after a trial was over. It scared the fuck out of me, so I quit doing that after a couple of years. They do mean well, and take their duty very seriously, and that is a good thing and all you can ask. And, however they get there, they really do usually produce the right result by my experience.

        • Epicurus says:

          In one of my juror civilian trials a judge addressing the prospective jury pools related his personal story. Through some quirk of fate he was empaneled on a jury and heard a case. He said it was the most enlightening experience he had ever been through in his trial life. (That was the part meant for the jury to get potential jurors excited about the prospect of jury service.) He said among other things the jury got to the heart of the matter better than anyone might believe but (the big “but”) the matters of the most concern to the jury and over which it spent the most time were how to get to justice for all concerned. And that is precisely where instructions, evidence, arguments, and beliefs in legitimacy all become guidelines but not hard and fast rules. Juries seem to mostly stumble but they seem to stumble over the right finish line.

        • bmaz says:

          Exactly. I have told the story before, but it has been a while, and it is Emptywheel after dark, so, what the heck. I had a criminal trial once and the prospective jurors filed in and were seated in the pews. I looked at them and there was a 9th Circuit judge in the back row. I had peremptories, but left him on, because he was a decent chap. Prosecutor laughed at me. But it worked out fine. The judge did chide me a tad for not bouncing him though, while at the same time relating how eye opening it was.

          The funny thing is, that judge sat on more juries than I ever have, or at this point ever will. There is always some party that does not want me, and I don’t blame them. But I’d love to be on that side for once. My wife has twice, but I would love to see it.

        • vvv says:

          I sat on a DUI trial jury about 10 years ago – I admit I was surprised to be seated- and it was fascinating.
          The officer testified that the defendant had taken a swing at him during the arrest, but the officer was such an apparent hardass that all jurors – not just me – immediately felt he was lying in that he did not charge it or even put it in his report, just testified to it on direct.
          Jury voted acquittal.
          Defendant bought the first round thereafter. < —joke

  11. AndTheSlithyToves says:

    “In this episode, we tackle some of the remaining questions left over from the violent attack on the Capitol and the Senate hearings. Why were Trump’s elite criminal backers – in particular, Roger Stone, Michael Flynn, Steve Bannon, Rudy Giuliani and Lin Wood – not mentioned in the hearings even though they served as a bridge between Trump and violent insurrectionist groups?
    Why are they seemingly not being pursued by the FBI, and why is the FBI also seemingly ignoring other high-profile violent participants like Ali Alexander and Alex Jones? Why is the FBI not giving the public regular updates on its investigation, and why did Biden retain Trump appointee Christopher Wray as FBI head – particularly when Wray seems to follow in the path of FBI leaders Comey, Mueller, Freeh, and Sessions, the latter two of which went on to work for the Russian mafia?”
    –Sarah Kendzior & Andrea Chalupa/Gaslit Nation


  12. Hika says:

    From the linked jury instructions:
    (1) One last point about conspiracy. It is no defense to a conspiracy charge that success was impossible because of circumstances that the defendant did not know about. This means that you may find the defendant guilty of conspiracy even if it was impossible for them to successfully complete the crime that they agreed to commit.”

    I recognize that bmaz is cautioning everyone that, so far, we haven’t seen the facts emerge for a slam dunk criminal case against those we’d most like to see locked up, but it was heartening to see the note about it being a crime to pursue a conspiracy even if the object was unattainable. There seem to be plenty of Republicans who hold the wholly wrong-headed notion that the insurrection didn’t succeed, so it couldn’t have succeeded, so it couldn’t have been a real attempt to overthrow the US government. At some point, someone with far greater literary knowledge and skill than myself will stitch together a tale of Trump and his Qnonsense adherents that pays homage to Cervantes and the original mad Q who ’tilted at windmills’ in his fight against imagined enemies.

    • PeterS says:

      Perhaps it’s a stretch to compare Q with Don Quixote. I agree there’s delusion involved in both stories, and Q may have started as a bit of a joke, but the QAnon narrative has helped create a truly dangerous movement.

      (My guess is that Q began as a trolling account/hoax – there were various -anon accounts around at the time – and that it was far from inevitable that QAnon took off the way it has; though with hindsight it looks planned. I emphasize the word “guess”)

      • Chris.EL says:

        Throughout these sagas involving Ukraine I’ve often wondered — what is the deal with Ukraine??? Perhaps (with Trump) it again goes back to Hitler!

        Astonished to learn this about Ukraine and Hitler: according to Yale Prof. Timothy D. Snyder (his Utube lecture is on Twitter — it is two hours, but half is Q&A from a sometimes German speaking audience (I fell asleep last night).

        Link https://m.youtube.com/watch?v=wDjHw_uXeKU

        Twitter TimothyDSnyder

        Something to see Prof. Snyder smoothly transition between the two languages; amazing skill to me as I only speak american, and a little english, and canadian.

        So for Trump, encompassing the corresponding leftovers of his predatory frenzies, lemmings (unlike “Trump plaza”) do not explode — his dream movement (Qanon) thinks Trump is returning to the presidency on March 4, so hotel nightly rates have been jacked up again! Quelle idiotes!

  13. Chetnolian says:

    Having read the excellent example of jury instructions, which I was glad to see would beof much the same import in an English court, taking account of different procedures, I took another message out of it.

    Prosecutors should not take action for conspiracy unless they are convinced they have a complete and convincing body of evidence which proves their case, without any weak links in the chain of agreement, however reached, between the alleged conspirators and a definition of the subject of the agreement which encompasses them all.

    None of us really knows if such a body of evidence could be collected, but currently it would be wrong to say it is not possible that it could be amassed. Have I got that right?.

  14. observiter says:

    I wonder if we will be hearing the word “racketeering” at some point.

    I dream about Trump losing his favorite properties. Wouldn’t it be something if Mar a Lago is then “donated” to its city for use as a conference center. The name “Obama Conference Center” has a special ring to it.

  15. skua says:

    On Cuomo, who seems to have led some sort of conspiracy whether criminal or not,
    (and very likely not from what I learn here) and his mismanagement of COVID in NY by, amonst multiple other failings, taking an executive order approach advocated by the Greater New York Hospital Association that failed to protect the lives and health of people in nursing homes, an approach which produced lax transmission control procedures: put him down as another NYC con man who failed his people when COVID demanded honesty, and the following of scientific advice, from him.
    (If anyone has a link to a graph showing death toll by age group from COVID with the deaths of those in nursing homes excluded please share. I suspect we’d see a relatively higher rate amongst 50-60 year olds visible in such a graph.)

  16. observiter says:

    If you want to talk about nursing homes and honesty, you’ve reached the right person. Here’s a hint: I would pursue a little more reading/education before making the assertions. It’s a more complex topic (nursing homes, Cuomo, etc.). Perhaps you’d like to start by reviewing the CANHR website (canhr.org). For example, here’s an article from their site (homepage, scroll down) that also applies to New York:

    “New Study Examines COVID-19 Cases and Deaths in California’s Nursing Homes
    On December 1, the California Health Care Foundation released a new report – COVID-19 in California’s Nursing Homes: Factors Associated with Cases and Deaths – that was prepared by a team of researchers from UCSF, Cal Hospital Compare and IBM Watson Health. Early in the pandemic, the study found that low staffing levels and for-profit ownership were major factors triggering outbreaks and deaths in California nursing homes. For-profit nursing homes had COVID-19 case rates five to six times higher than those of nonprofit and government-run nursing homes while facilities with RN staffing greater than 0.8 hours per resident day had 50 percent fewer COVID cases than nursing homes that staffed below that level. As the pandemic spread, demographic factors including age and race were found to be significant risk factors. For example, nursing homes with higher percentages of Latino residents were found to have larger outbreaks than those with smaller populations of Latino residents. The report contains a series of important recommendations on staffing, ownership oversight, health equity promotion, facility size and design, transparency and public reporting of data.”

    • skua says:

      LOL. Your point being?
      (Having spent months on a submission around the serious nursing mistreatment of a relative in a nursing home and seen first-hand the skilled gaslighting and cover-ups orchestrated by the management, I find your presentation of a study into Californian nursing homes when Cuomo’s cover-ups for his failures around NY nursing homes and COVID are the topic to be quite par for the course.)

      • observiter says:

        It is quick and simple to points fingers at a stupidly-overwhelmed politician regarding data about nursing homes. From my perspective, nursing home (and assisted living) operators (owners, managers) join the ranks of the sleeziest, most crooked. Politicians and the public have limited insight on how bad it truly is. Whatever data there is is either suspect or inadequate. I’m happy to provide specific details/facts.

        I don’t doubt Cuomo made all types of mistakes and also has an ego. Let’s be honest, shall we. What the hell was going on in New York when Cuomo was most busy battling the virus — at the very beginning of its major infection in the United States, in (one of?) the most densely-populated states/cities, at a time little to nothing was known about battling the virus, at a time everyone contracting it seemed to be dying.

        And, let’s remember how udderly generous and helpful and supportive Trump was towards working with Cuomo to overcome the dire New York situation. If you are pointing fingers at anyone, I’d direct it at Trump and his major mismanagement of the U.S. virus infection. I blame Trump for everyone who died from it, especially in New York.

        What exactly was your comment all about, and your intention?

        • observiter says:

          Let’s remember how jealous and spiteful Trump and his administration appeared towards Cuomo at a time Cuomo was in charge of battling one of the largest challenges in this country’s history, at a time when Cuomo and the public health experts were basically blind. It is not surprising to learn that Cuomo isn’t perfect and was conflicted about how and what he communicated.

          Nice to look back a year later when much is now known about the virus and it is being reined in.

    • observiter says:

      Putting aside conspiracies for a moment, I prefer healthy teamwork, like what’s required for the soon-to-occur landing on Mars of the rover Perseverance.

      • skua says:

        I acknowledge and appreciate your generous and measured reply Observiter. I am in agreement with much of what you write.
        The warehousing of, and removal from everyday life of, many elderly people is an ongoing disaster for our culture. They get hidden away, isolated, disconnected from their previous lives exactly when they most need that previous life to remind them of who they are and what makes life worth living, and we, those who remain outside the facilities, are heavily biased towards forgetting them by their move to another “residence”, towards seeing them as “now in the care of professionals”, and lose our chance to learn what their frailty, their decreasing abilities, the ending of their lives, has to teach us. And we get infected with that almost unspeakable horror that we’ll get warehoused too eventually.

        COVID has tested our societies and cultures. Yes, Trump was a major point of failure that led to 100s of thousands of deaths of Americans (and I suspect there were global consequences/deaths too from the absence of American leadership, expertise, example & market force, in a co-ordinated international transmission-reduction response to COVID). Trump needs to be held responsible. As do those who promoted, supported, defended and enabled him, from Murdoch, through his voter base, the GOP, Putin, to those who saw working for Trump as a means to career advancement.
        You may disagree but I think the failures by Cuomo listed in Judd Legum’s article (URL below) go to his suitability to lead.
        Thank you again for your kind response, I had been dreading where our interaction might go.

  17. Eureka says:

    # Wentz-day dump buried in massive snow-sleet storm.

    LOL I was about to say it hasn’t even been on the news but just now they are breaking into snow coverage

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