What a Fool Believes: Trump Indictment # 3 Edition
The latest indictment of Donald Trump contains allegations that, if proven, would suffice to show that he knew that there was no election fraud sufficient to alter the outcome of the 2020 Presidential election in any state. In other words, it alleges that Trump lied--and thus committed fraud and other related offenses--when he used the false claims of fraud as the basis for his efforts to overturn the result of the election.
Despite the claims of some Trump apologists, Trump has no First Amendment defense. United States v. Alvarez holds that lies, by themselves, cannot be made criminal, but it certainly does not stand for the proposition that lies can never be part of what makes a course of conduct criminal. If it did, there could be no crime of perjury or fraud.
The better argument for Trump would be that he didn't lie because he believed that there was widespread election fraud. A lie is a false statement that the speaker knows to be false and utters with the intent to deceive. (The intent to deceive distinguishes a lie from a joke, which can also be a false statement the speaker knows to be false but utters with the intent to amuse.) More succinctly, as George Costanza famously said to Jerry Seinfeld, "it's not a lie, if you believe it."
Consider paragraph 90(c) on page 33. It says that Vice President Mike Pence objected to Trump's claim that, as Vice President, Pence had the authority to reject or return electoral votes to the states. Trump then "told the Vice President, 'You're too honest.'" That statement shows that Trump knew that what he was proposing rested on dishonesty, i.e., that the factual and/or legal claims underlying the scheme by co-conspirators John Eastman and Ken Chesebro to impede Congressional certification of Joe Biden's victory were false--and that therefore Trump knowingly sought to obstruct an official proceeding, as charged in the second and third counts of the indictment.
Other statements by Trump that are listed in the indictment also indicate his guilty state of mind. For example, consider paragraph 74 on page 28. Acting Attorney General Jeffrey Rosen tells Trump that the Justice Department is not going to attempt to change the outcome of the election (because its investigations revealed no substantial instances of fraud or anything else that would lawfully alter the outcome). Trump tells Rosen: "Just say that the election was corrupt and leave the rest to me and the Republican Congressmen." That "just say" is quite probative of Trump's mental state: he doesn't point to evidence that leads him to think Rosen and the rest of DOJ (except his co-conspirator Jeffrey Clark) are mistaken; he wants Rosen to "just say" something regardless of the fact that it's false.
The "just say" is of a piece with Trump's instructions to Georgia Secretary of State Brad Raffensperger that he needs to "find" 11,780 votes, described in paragraph 31(f) on page 16 of the indictment and likely part of Trump's fourth set of criminal charges forthcoming in Georgia state court. These and similar statements from Trump's own mouth indicate his subjective awareness that what he was attempting was not grounded in fact. In other words, Trump knew. In Costanzan terms: If it's false and you don't believe it (and you're not just kidding), it is a lie.
Given the direct evidence of Trump's mental state, the indictment's additional allegations that Trump was repeatedly told by trusted advisers that he lost the election are unnecessary but relevant because they establish the basis for Trump's knowledge. Those additional allegations do not, however, independently show that Trump was lying. To be clear, they don't need to do so. I make the point only to underscore that, while Trump pretty clearly knew he was lying, it's possible to be told something very very clearly and repeatedly and yet still believe the opposite.
Despite overwhelming evidence to the contrary, a great many Americans believe that Barack Obama was not born in Hawaii, that global warming is not a serious threat (and may be a hoax), and/or that vaccines cause autism. There is a tendency to think that if some proposition is obviously false, the people asserting it must be lying. But that's not so. For instance, during a recent interview for The New Yorker Radio Hour, David Remnick asked Robert Kennedy Jr. whether he really believed that mainstream journalists were engaged in a conspiracy to quash dissent. Kennedy seemed taken aback. "Of course I believe it," he answered, implicitly endorsing the other conspiracy theories he also peddles. And Kennedy is a well-educated man who (claims he) reads widely.
The allegations in the latest indictment against Trump make a very powerful case for his having knowingly lied for the purpose of unlawfully overturning the election. But it is not that difficult to imagine a different scenario in which Trump, driven by his own enormous but fragile ego, believed that he really had won the election despite the overwhelming evidence to the contrary presented to him by people he had previously trusted. In this alternative world, Trump would have lost touch with reality but would have otherwise acted exactly as he did in our reality, similarly abetted by co-conspirators 1 through 6 and the mob he inspired. That alternative-Trump would not be guilty of the charges leveled in the latest indictment, but he would be no less a threat to the Republic.
As Prof Buchanan argued forcefully here at the end of last week, Trump's real trial will be the election of 2024. In that trial, his supporters are right about one thing: it doesn't matter whether Trump is guilty or not. But of course they draw the wrong conclusion. Whether Trump is a criminal who lied about the election to hold onto power (as he very much appears to be) or a delusional egomaniac who believes in alternative facts, he is a menace of the highest order.