It’s a paradox worthy of Joseph Heller’s classic 1961 novel, Catch-22. Donald Trump’s deeply problematic state of mind made him unfit to be president in 2017. He got elected anyway, and now that same mental impairment, several legal experts say, may disqualify him from being held accountable for the crimes he committed in the Oval Office.
The brazenness of Trump’s insistence, despite overwhelming evidence to the contrary, that he won the 2020 election is a continuing theme for the Select Committee to Investigate the January 6th Attack, which held its fourth public hearing on Tuesday. “The president’s lie was and is a dangerous cancer on this body politic,” said Representative Adam Schiff, Democrat of California. True enough.
But what if Trump believes his election lies? Writing in Politico, Renato Mariotti, a former federal prosecutor, says that Bill Barr’s statement to the January 6 committee that Trump was “detached from reality” about the election “might be his best defense against a possible criminal prosecution” for conspiring to overturn it. “The key,” Daniel L. Zelenko, another former federal prosecutor, told The New York Times, “is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway.” Daniel Richman, a third former federal prosecutor and a professor of law at Columbia, writes in Lawfare: “Delusional pigheadedness is indeed a defense.”
It seems strange that discussion of Trump’s legal exposure should focus on this obstacle, rather than on the much larger one that no president has ever been tried for crimes committed while in office. Legal objections to such prosecutions may be spurious, but that doesn’t mean Attorney General Merrick Garland relishes the prospect of a prosecution that would invite constitutional challenge and rally Trump’s base to the 2024 Republican nominee—possibly Trump himself. Of all the reasons why Trump won’t likely be held legally accountable for his attempted coup, that’s the biggest.
But setting such practicalities aside, I can’t accept what Richman calls “the difficulty of a trip into the head of someone who has had a troubled relationship with expertise, precedent, and reality.” I’m not a former prosecutor, nor even a lawyer, and Richman is a very smart one. (I knew him in college. Hi, Danny!) Still, this deference strikes me as grossly misapplied to someone whose head I was forced to live inside—whose head we all were forced to live inside— for four very stressful years.
The argument against holding legally accountable a person with Trump’s feeble purchase on reality turns on the question of mens rea, or “guilty mind.” Does Trump believe his own lies? If he does, he lacks mens rea. To nail Trump, you need to prove that he didn’t really think he won the election or that he didn’t really think saying, for instance, “When the right answer comes out, you’ll be praised,” as we learned Tuesday he said to a Georgia elections investigator named Frances Watson—whom he never should have been speaking to in the first place—constituted a directive to commit voter fraud. I’m not yet prepared to believe no evidence exists that Trump acknowledged privately that he did lose the election, because Trump is no paragon of consistency. He uses words not to convey truth but to make things happen, and sometimes what he wants to happen is that this or that reasonable-seeming person be mollified with a reasonable-sounding remark. (This is something I learned about Trump—perhaps you did, too— while we lived inside that head of his.) Maybe Trump made one such mollifying remark to some reasonable-seeming person from whom we haven’t yet heard.
But let’s assume, for argument’s sake, that Trump really does lack mens rea. He seems these days to be working overtime to demonstrate he does. That means, among other things, that Trump’s Cabinet ought to have invoked the Twenty-Fifth Amendment to remove Trump from office. Early in the administration, White House chief strategist Steve Bannon said he thought Trump was suffering from early stage dementia, according to Ira Rosen, a former producer for 60 Minutes, and tried to enlist Republican donor Robert Mercer to urge the removal process along. Like later internal discussions about the Twenty-Fifth Amendment, this one went nowhere. Two efforts to impeach Trump also failed, even though Congress needn’t consider a president’s state of mind to remove them from office.
In both instances, the problem was that Trump’s mens rea deficit was contagious. First congressional Republicans caught it, including Senators Ted Cruz and Lindsey Graham, who previously had denounced Trump as “a pathological liar” (Cruz), whom “we should have basically kicked … out of the party” (Graham). Next came Trump voters, who in 2016 harbored few illusions about whether their man was “honest and trustworthy” (more than 20 percent conceded he was not). Over time, Trump supporters adopted a more favorable view. Despite the ample opportunities his presidency gave them to learn how very dishonest he really was, by 2020 only 14 percent of Trump voters conceded that Trump was not “honest and trustworthy.” Does Trump say Biden was not elected president legitimately? Then 70 percent of Republican voters agree. An entire political party accepts Trump’s alternative reality. If Trump is delusional, then so are all those voters. You can’t diagnose all of them. We don’t have enough Thorazine!
Here’s a thought experiment. Imagine applying mens rea to the bloodiest tyrants of modern history. Did they possess guilty minds? Not so’s you could tell. It wouldn’t be very difficult for a defense lawyer to demonstrate that Hitler, Stalin, and Mao, who between them murdered about 65 million people, suffered from severe mental illness that prevented them from feeling guilt about their butchery. Now imagine going back in time and putting these three in the dock at Nuremberg or the International Criminal Court at the Hague. Would any such proceeding even consider that delusional pigheadedness shields them from the consequences of their crimes? “When Herr Hitler said the Jews were ‘a race-tuberculosis of the peoples’ and must therefore be eliminated, he was stating his sincere, albeit erroneous, opinion.” Merely imagining such talk feels obscene.
Granted, Trump was not a mass murderer; he merely tried and failed to pull off a coup d’état. That makes him much less of a problem than the twentieth century’s big three monsters. (I’ve long been persuaded by arguments that the head of state whose character most resembled that of Trump was Germany’s Kaiser Wilhelm II.) But Trump’s small stature in the annals of tyranny also makes him, may it please the court, less obviously deranged for the purposes of our proceeding.
Trump has, perhaps, an innate ability, derived from extreme narcissism, to believe anything he wants to believe. But how different, really, does that make him from many other successful people in business? Does mens rea render America’s entire executive class unprosecutable? If so, we’ve got a bigger problem than I thought.
Trump may be a sociopath, but I can name several others in the upper reaches of corporate America who share his belief in the malleability of truth. So, probably, can you. With enough lawyers, Trump believes, you can create whatever reality you want. This, I’ve often been told, is an approach that’s widely shared within the upper reaches of the real estate industry. Trump is not impaired. He’s just a rich asshole who believes what he wants because he can. For heaven’s sake, don’t make that a reason not to put him on trial.