THE TRUMP INSANITY DEFENSE

Michael Wolff, the author of two previous books about Donald Trump, had an insightful guest essay in the New York Times last week called Down the Rabbit Hole Into Donald Trump’s Brain.  In the essay Wolff asks the question on many people's mind:  Does Mr. Trump mean what he says and what does what he says mean?  The answer to these epistemological questions may determine the outcome of the numerous prosecutions pending against the former president, especially the most recent indictment based on the events leading up to January 6, 2021. 

Wolff characterizes Trump’s way of speaking as an:

 …unmediated fire hose of verbiage, an unstoppable sequence of passing digressions, gambits and whims, more attuned to the rhythms of his voice than to any obligation to logic or, often, to any actual point or meaning at all and hardly worth taking notice of.

That about sums it up.  

Wolff speculates about Trump’s curious reaction to the January 6 indictment:

His years-long denial of the 2020 election may be an elaborate fraud, a grifter’s denial of the obvious truth, as prosecutors maintain, but if so, he really hasn’t broken character the entire time. I’ve had my share of exposure to his fantastic math over the years — so did almost everyone around him at Mar-a-Lago after the election — and I don’t know anyone who didn’t walk away from those conversations at least a little shaken by his absolute certainty that the election really was stolen from him.

It is precisely this behavior, unconcerned with guardrails or rules, unmindful of cause and effect, all according to his momentary whim — an overwhelming, almost anarchic instinct to try to invert reality — that prosecutors and much of the political establishment seem to most want to hold him accountable for.

(The behavior Wolff describes actually has a name.  It is called bullshitting.  More on that later.  Back now to the January 6 indictment.)

It is Trump’s denial of obvious truth, unshakable certainty about invented facts, and instinctual inversion of reality that cause Wolff to wonder and worry whether Trump can be held accountable:

Prosecutors will soon run up against the epistemological challenges of explaining and convicting a man whose behavior defies and undermines the structures and logic of civic life.

There’s an asymmetric battle here, between the government’s precise and thorough prosecutors and Mr. Trump’s head-smacking gang of woeful lawyers. …Here liberals see a crushing advantage: As ever, Mr. Trump seems unable to walk a straight line even in his own defense. But his unwillingness or, as likely, inability to play by the rules or even understand them creates a chaos often in his favor. Indeed, the prosecutors’ story of his grand scheming will most likely require them to present a figure of the former president — calculated, methodical, knowing and cunning — that none of his supporters or anyone who has ever met him or reasonable jurors and perhaps even the world at large would recognize.

I can’t imagine what will be produced by this dynamic of strait-laced prosecutors versus a preposterous Mr. Trump, his malfeasance always on the edge of farce. But my gut tells me the anti-Trump world could be in for another confounding disappointment.

Whether Jack Smith (above) can obtain a conviction of Trump in the January 6 prosecution is unpredictable, given that it takes just one hold-out pro-Trump juror to acquit, and the case may not even be decided until after the election, which Trump could win, in which case he would have his Attorney General dismiss it.  However, one thing is certain.  Any conviction will depend on proving Trump knew he lost the election.  And that will require getting inside Trump’s head.  From a comment in The New Yorker:

Trump is charged with four felony counts: conspiracy to defraud the United States, by attempting to overturn the election results; conspiracy to violate civil rights, namely citizens’ rights to vote and to have their votes counted; conspiracy to obstruct an official proceeding, that is, the congressional certification of the electoral vote; and the actual obstruction of that proceeding.

All four counts depend on a basic factual allegation: that Trump understood that he had lost the election, and that his actions were undertaken with that knowledge. The indictment therefore goes to great lengths to demonstrate the many ways in which Trump was provided with that knowledge. Multitudes within his Administration—including his Vice-President, his Attorney General, his director of National Intelligence, and his White House attorneys—told him that the claims of election fraud were false, as did his campaign staff, officials in multiple federal agencies, Republican state legislators, and courts in lawsuits that he filed. The success of the case will depend on the prosecution’s ability to prove exactly what Trump, in his own mind, truly knew to be false, among all the things he said and did that came so close to breaking our democracy.

In the Washington Post, Ruth Marcus outlines the legal arguments Trump’s lawyers, including John Lauro above, might advance to counter the charges in the indictment, including the charge in Count One, conspiracy to defraud the United States, a felony offense under Title 18, U.S.C. §371.  Based on what those lawyers frisbeed out in last Sunday's TV media blitz, she expects the defense to argue that Trump lacked the requisite intent to defraud the government because he was convinced the election was stolen from him and was only making legitimate efforts to rectify the error.  She cites Section 923 of the Justice Department's Criminal Resource Manual on what the department must establish in order to prove the requisite intent under  Section 371:

As the Justice Department’s instructions for prosecutors state, “The intent required for a conspiracy to defraud the government is that the defendant … performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government.”

In the end Marcus says, the issues of Trump’s state of mind and whether prosecutors have met their burden of proof will be questions for the jury to decide.

I agree that Trump's state of mind will be central to proving the case, but I think Lauro's defense that Trump really and truly believed he won and therefore could not have lied when he said so, both misinterprets the case law on what constitutes knowledge and ignores the Justice Department's Criminal Resource Manual on how to prove it.  

It is settled law that a person who recklessly disregards whether a statement he makes is false can be deemed to have knowingly and willingly made a false statement.  Section 910 of the Manual discusses "knowingly and willingly" in the context of fraud cases against the government.  It states that the prosecution need not prove the defendant knew his statements were false.  Rather,  the government may prove that the defendant acted with reckless disregard as to their falsity.  From Section 910 (emphasis added):

Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government.

A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. . . . Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government.

The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity.

And this is where bullshit comes in. Trump knew his claim that he won the election was false only in the sense that he didn't care whether it was untrue.  Therefore, he wasn't intentionally lying when he said he won.  He was bullshitting.  There is a difference.  But the difference doesn't help Trump's defense.

I blogged about bullshit in a post titled Wittgenstein, Bullshitters, and Malignant Narcissists, which included excerpts from Harry G. Frankfurt's treatise On Bullshit.  Frankfurt's description of a bullshitter not only describes Trump to a T, but his description of bullshitting  meets the "reckless disregard for the truth" knowledge standard requisite to proving fraud as set out in Section 910 of the Manual.  

It is important, I think, to understand that while Trump is not technically a liar, he is a bullshitter who is completely indifferent to the truth. Here is Frankfurt's definition of bullshit, with my emphasis added.

It is impossible for someone to lie unless he thinks he knows the truth.  Producing bullshit requires no such conviction.  A person who lies is thereby responding to the truth, and he is to that extent respectful of it.  When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false.  For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false.  His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says.  He does not care whether the things he says describe reality correctly.  He just picks them out, or makes them up, to suit his purpose… It is just this lack of connection with the truth—this indifference to how things really are—that I regard as the essence of bullshit.

Frankfurt's description of a bullshitter not only describes Trump's relationship to the truth, but his description of bullshitting  meets the "reckless disregard for the truth" knowledge standard requisite to proving fraud set out in Section 910 of the Manual. The answer to Wolff's question--does Trump mean what he says, and what does what he says mean--is the same:  It means nothing.  It's bullshit. 

To say, as the indictment does that Trump “knew” he lost the 2020 election is accurate only in the context of bullshit.  Trump doesn’t know things the way most people know things.  He believes things the way a bullshitter believes things.  Believing is different from knowing.  Believing is not based on facts, and in Trump's case, his belief that he won the election is based on his narcissistic personality.  In his version of reality, of course he won, because he is a winner and winners never lose.  Period.  Whether that is true or false simply doesn’t enter into the equation.  Facts are irrelevant.  They don’t matter.  What matters to Trump is his self-image and how he can project that to others to make them believe his version of reality.   

Trump, like all bullshitters, says whatever he needs to say in that moment to keep his self-image and public image aligned.  If the facts don't support the image, then the facts must be denied and alternative facts created.  This is what a bullshitter does.  He doesn't exactly lie.  He just makes shit up.  Understanding this fact about Trump illuminates his mental state as that of a bullshitter.  Explaining that to a jury may be essential to proving criminal intent under the indictment and convicting Trump.

If I were advising a defendant as divorced from reality as Trump, I would suggest he admit to the facts alleged in the January 6 indictment but plead not guilty by reason of insanity.  Send him to the nut house, not back to the White House.

Keep it real!

Marilyn