The Self filter on belief
There’s a very particular difficulty with holding Trump to account, that is probably more acute than with most crooks. Just Security explains:
To prove that Trump criminally obstructed the electoral count proceeding, prosecutors would need to convince a 12-person jury that he acted “corruptly.” According to the D.C. courts, this means that “the defendant must use unlawful means or act with an unlawful purpose, or both” to obstruct the proceeding. In addition, the “defendant must … act with consciousness of wrongdoing,” which is defined as acting “with an understanding or awareness that what the person is doing is wrong” (emphasis added).
You can see where this is going to go.
In other words, it is not enough to prove that Trump knowingly engaged in an act that was unlawful; he must have subjectively understood that the act was unlawful.
I paused to think about that, as I’m sure every reader did. Is Trump even capable of understanding such a thing? He gives every appearance of not being. It’s not even that he’s too dumb, it’s that he (apparently) genuinely sees everything in whatever light is most flattering or useful to him, because that’s how he’s wired. He translates the entire world and everything in it to “good for me” and “bad for me.” That’s it. He doesn’t (to all appearances) even understand that there are other criteria. His stupidity and his self-dealing unite to form an impregnable seal around his brain, that repels any whiff of subjective understanding that a thing he wants to do is unlawful.
It’s kind of an interesting phenomenon to observe, in a depressing way.
Several commentators who have questioned the likelihood of a Trump prosecution have highlighted the challenge of proving that Trump doesn’t sincerely believe his own prolific lies or those of his sycophants, and lamented the absence of smoking-gun evidence revealing Trump’s inner thoughts when it comes to proving that he knew what he was doing was wrong as he attempted, in various ways, to stop the electoral count proceeding.
Well, yes. Although I’m not sure it’s that he sincerely believes his own lies so much as it is that he doesn’t ask the question in the first place. It doesn’t arise. He just does what he thinks will work in the moment, and truth or untruth is somewhere out beyond Jupiter in terms of relevance.
For example, in one New York Times piece weighing the prospects for a Trump prosecution, the authors noted that Trump “would have a powerful argument about his mental state” against a claim that he pressured former Vice President Pence to violate his legal duties under the Electoral Count Act – i.e., that Trump “sincerely thought he was asking Mr. Pence to do something lawful” because of the “advice” he received from lawyer John Eastman, who concocted a baseless rationale for Pence to ignore the law. Likewise, in a second piece, the Times quoted a law professor for the proposition that “[t]he problem with Trump is defining his state of mind when it is so changeable. He believes whatever he wants to think and it doesn’t necessarily have to be grounded in reality. That’s a tough argument to a jury, to say he knew a particular thing.”
That. It looks to me as if that’s how he does it. He believes whatever he wants to think, and reality is over there somewhere, beside the point. His ego is everything, and the rest of the world is a lot of meaningless specks, like gnats over a garbage dump.
A Washington Postanalysis similarly observed that while there’s ample evidence “that Trump was repeatedly warned his rhetoric [about election fraud] was untrue, it may be more difficult to prove that Trump believed those warnings.”
Or even heard them, or if he did hear them, understood them as anything but disloyal outrageous insults to his greatness.
I volunteer in a prison, and while most of the guys in there freely acknowledge that they have done bad, wrong things, there are a few who just don’t get it. Those are sex offenders, mostly. But even the ones who never quite understood it the way the rest of us do were all convicted anyway.
Your honor, my client believed, and still believes, that the money in that bank vault is rightfully his. Therefore, I move to dismiss.
I’m wondering if violation of his Oath of Office would be a way around that? Is that something one can do “accidentally?”
I think I remember something to the effect that, sociopathy is not a defense on the issue of intent.
It depends on the type of crime I think. If Trump actually murdered someone I don’t think his inability to “intend” to do anything would be used as anything other than as part of an insanity plea.
I suspect this is something Screechy Monkey can speak to more definitively. My understanding is that the crimes most of get prosecuted for are ‘strict liability’. You do (or don’t do) certain things and you’re guilty. Whether you knew about the law, understood the law, or intended to break the law is irrelevant. The sort of laws that rich and important people break, typically white collar crimes like financial crimes, bribery, corruption, election interference etc, require a state of mind. The prosecution have to prove that the accused knew that what they were doing was illegal, and chose to do it anyway. Commentators such as Ken White have been saying since at least 2016 that the issue with Trump is that his mental state, erratic and impulsive behaviour and steadfast belief that whatever he does is right, plus the fact he speaks in such a hyperbolic and frankly irrational manner, makes it really hard for a prosecutor to prove that mental state. It’s not helped by prosecutors being unwilling to invest in cases that are high profile and not slam dunks. Easier to pick on Average Joes or harass women with gender critical beliefs.
Following Papito @#2: And Your Honour, while driving away from the scene while immersed in my own reality, I naturally drove on the left hand side of the road, and so I can’t be held responsible for all that damage, death and mayhem; as my lawyer has told me to say. Born and raised in Oodnadatta, Your Homour.
Rob @ 6 – Ya that’s why Comey called the NY prosecutors the chickenshit club: because of that reluctance to take cases that would be hard to win.
I think Rob @6 is basically correct, although relatively few crimes are actually what lawyers would call “strict liability” offenses. (Mainly things like statutory rape — in most jurisdictions, it doesn’t matter if you were absolutely utterly convinced that the victim was of legal age. Or else minor traffic offenses like speeding.) Most crimes have some intent requirements, either specific intent, general intent, recklessness, or negligence.
Another factor is Trump’s general refusal to use email. A very common way to prove that someone actually did know the thing they’re claiming not to know is that they said it in an email. That’s not generally an option with him (even if someone sent him an email, he can always say he didn’t read it, didn’t understand it, etc.). Sure, there are people who can testify to certain conversations, but some of them will refuse to testify, and the ones who will be called liars. That’s why some people think that the only case that’s a real threat to Trump (if any of them are) is the Georgia election tampering case, because there’s an actual recording.
Ophelia writes of Trump: ‘He translates the entire world and everything in it to “good for me” and “bad for me.” That’s it. He doesn’t (to all appearances) even understand that there are other criteria.’
I wonder about this (though not about that first ‘He translates the entire world and everything in it to “good for me” and “bad for me.”’). I wonder whether it is not, rather, that he does recognise the existence of other criteria, but he doesn’t respect them since ‘good for me’ and ‘bad for me’ simply outweigh them in his mind. Forgive the pun, but in his mind his well-being (or what he supposes is his well-being) trumps any other consideration, legal or otherwise.
And moving to Screechy Monkey’s point, surely Trump’s general refusal to use e-mail means that he does in fact recognise other criteria, and seeks ways to circumvent them.
Trump has always grasped something that many people just started to learn in the last six years, and some still haven’t: that political and legal systems depend on norms, and if you have the raw power and willingness to ride roughshod over those norms, then the system is often powerless.
Think of how many times people have asked “can Trump really do that?” and the answer is either “well, there’s no actual law against it,” or “well, there’s a law against it, but if the people in charge of enforcing it can’t or won’t, then, yeah, he gets away with it.”
There was a norm that presidential candidates release their tax returns, but it turns out that you can ignore it.
There was a norm that confessing to sexual assault would ruin you politically, at least temporarily, but it turns out that you can ignore it.
There’s not an explicit rule against abusing your power by firing people to prevent them from investigating you, except to the extent Congress considers it sufficient grounds to impeach and remove you, but if more than 1/3 of the Senate stands by you, well… (shrug).
There is an Emoluments Clause in the Constitution, but if more than 1/3 of the Senate doesn’t care if you run a bribery operation out of your D.C. hotel….
Etc.