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I was about to respond to this email from TPM Reader JR. But I decided it made more sense to respond here.
Lots being written about the importance of establishing whether Trump “knew” he lost. Greg Sargeant this morning, Slate over the weekend (does Trump really ever “know” anything”) etc etc. I don’t touch criminal law but it seems to me that focus is too narrow. I would think Trump could have had the requisite criminal intent to use illegal means to overturn an election even if he “believed” the election was being stolen from him. That is, if he knew or was wilfully blind to the fact that he or his team were using unlawful means to “contest” the election, wouldn;t that be enough? If he had warnings his words and actions would incite the violence1/6 or were in coordination with plans for the assault on the Capitol, why does it matter whether he “knew” he lost or not?
Like JR, I’m not a lawyer. So I can’t speak to the internal logic of particular case law or legal standards about mens rea and consciousness of guilt. But I think the way to approach this question is to work it from the other side, as it were.
I’ve discussed before that for Trump and many others we have too binary, too linear an understanding of what “belief” means. Someone like Trump doesn’t “believe” things in the way most of us do — which is that we “believe” things that we think did happen and vice versa. We’re human, so bias may affect our judgments at the margins. But that’s the model. For Trump, there is just what he wants. He “believes” whatever will get him what he wants.
Does he somehow convince himself of this? Like some kind of willed delusion? Stop it. You’re sticking too much to your linear way of thinking about belief. He hasn’t “convinced” himself. Why would he need to and what would that mean? He just says whatever will get him what he wants. Full stop. Any sense of asking, well … has he convinced himself these things are true? No! If you could actually get Trump to sit down and be straight with you this question would probably seem as ridiculous a question as if you’d asked Marlon Brando if he really thought he ran a crime family in New York. First, of course not, but also what does that even have to do with anything?
Trump doesn’t “believe” anything.
But here’s what I mean by argue it back from the other direction. It cannot be the case that someone can evade legal culpability for a crime by consistently claiming not to know things that are obviously true, that everyone around him says are true, that he has no basis for disbelieving. Just on logical principles, that cannot be the case. Otherwise, it’s a “get out of jail free” card for literally any crime. Just say consistently that you believe Mr. X threatened your life and you’re entitled to murder him without any legal consequences.
As we know from actual trials, you can’t just “believe” anything. You can’t just say I believed he was about to kill me and that’s the end of the discussion. Your belief has to be reasonable. It cannot be the case that your stated “belief” is an affirmative defense for your criminal behavior. Because the whole justice system can’t work in that case. Your belief must meet some level of reasonableness. Yet all of Trump’s statements are simply absurd on their face — both in their inherent logic and by the say-so of everyone around him. The only unifying logic is that he would say anything he had to to remain President.
What I think all of this means is that we don’t need to go down the rabbit hole of the inner workings of Trump’s mind. That’s his problem. Not ours. As long as we do, we’re chasing a figment where there is only one possible fact witness: him. That’s silly.
The mob boss who says he’s never been a member of the mob isn’t confused. He doesn’t have an unrealistically high opinion of himself. He’s lying because he doesn’t want to go to prison. That’s obvious. Just as this case is obvious.
