No. of Recommendations: 5
The voice of reason provides some sanity to a systematic craziness the public is being subjected to.
I wouldn't overstate that. As we've discussed over and over again, a crime almost always requires a prosecutor to prove a particular mental state. A civil violation typically does not.
That's critically important when looking at actions that can be both criminal and civil violations. For example, battery - unlawful physical contact with another person - can be both a crime and a civil tort. If someone hits you and causes you an injury, they can be prosecuted as having committed a crime and you can sue them for damages as a civil claim. The difference is the level of intent necessary to prove up the claim. For a criminal case, the government has to prove that they had specific intent - to cause the injury. For a civil case, you only have to prove general intent - that they intended to hit you.
Specific intent is very hard to prove in many contexts. DOJ can easily have determined that Trump's actions did cause the insurrection to happen (and thus he engaged in insurrection), but that it did not have evidence to prove that Trump intended his actions to cause the insurrection.
That's why I don't think that the failure to prosecute is a slam-dunk, and I do not expect SCOTUS to base any decision on that argument.
