U.S. District Judge David O. Carter’s finding last week that Donald Trump’s failed efforts to overturn the 2020 election were probably criminal has set off a familiar drumbeat of anticipation among the former president’s pursuers. But few of them seem to have noticed that the new theory of Trump’s criminality contradicts the political case against him.
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That’s because the contemplated criminal case hinges on (among other things) Trump’s state of mind. For him to have committed a crime, he must have known he had, in fact, lost the election when he tried to overturn it.
The political case against Trump, meanwhile, has always rested substantially on his alleged irrationality: that he inhabits a “post-truth” factual universe that rejects information damaging to his ego. If true, that would undermine the criminal case against him. The conflict points to a wider lesson about the law’s limited ability to regulate a polarized political system.
Carter’s ruling accepted an argument put forward by the congressional committee investigating the Capitol riot of Jan. 6, 2021. One of Trump’s lawyers claimed attorney-client privilege over emails, but the committee argued that they fell under the “crime-fraud exception.” Carter agreed.
The judge wrote that Trump “more likely than not” committed two crimes in seeking to halt the certification of electoral votes: obstruction of an official proceeding and conspiracy to defraud the United States. Each has several elements, but the most important is state of mind. Some laws require that a defendant acted “negligently” or “knowingly” or “recklessly” to be liable, but the intent requirement for the obstruction statute is higher — “corruptly.”
While Trump “justified the plan with allegations of election fraud,” Carter concluded, he “likely knew the justification was baseless.” Such conscious dishonesty would point toward a corrupt state of mind. The judge’s conclusion is not based on new evidence but already-public information, principally the statements of “numerous executive branch officials” who told Trump “that there was no evidence of fraud.”
But Trump was not exactly known for internalizing the counsel of subordinates when he did not want to hear it. Carter may be paying Trump a compliment he does not deserve in assuming that his political beliefs are grounded primarily in a weighing of empirical evidence — and that because the evidence did not support his fraud claims, he must not have believed them.
Trump’s critics maintained throughout his presidency that he marinated in “misinformation” and that his ego or ideology blinded him to adverse realities. House Speaker Nancy Pelosi (D-Calif.), speaking about his immigration policies in 2018, said the president was “either not knowing, not caring” or “delusional, in denial.” A characteristic CNN article in 2020 on Trump’s “surreal alternate universe on coronavirus” said the president “sees the world not as it is, but as he would like it to be.”
Rep. Jamie B. Raskin (D-Md.) in 2020 hammered Democrats’ message that Trump was fundamentally out of touch with reality by introducing legislation that would have created a panel of, among others, four psychiatrists with the power to remove a president. Yet now, Raskin’s Jan. 6 committee is eyeing a legal theory that would require proof that even on a matter tied closely to his ego, Trump saw reality clearly.
All this shows how the “reasonable person” standard at the core of U.S. law — which requires judging the actions of others based on an objective reference point — exists uneasily in a politically fractured society. Carter’s conclusion that Trump acted corruptly relied on the fact that, as he wrote, “the illegality of the plan was obvious.” And it’s true that any reasonable person in Trump’s position would have known their claims were false and their conduct outrageous.
But, at least on the subject of his election defeat, Trump is not a reasonable person. His denialism is an extreme example of modern political delusion, but it is just one example of the erosion of “shared reality” in U.S. politics. Other examples of partisan reality distortion include the false liberal convictions that Trump was a Russian asset or that Republican-run states today are imposing voting restrictions comparable to Jim Crow. As partisans adopt nonoverlapping beliefs about the political world, prosecutors, judges and juries lose a common standard by which to regulate political behavior.
The U.S. legal system is effective at sorting true facts from false ones — as in its determination in 2020 that the election was not stolen. But it isn’t well-equipped to divine the motives behind politicians’ propaganda. Even as polarization makes the law more tempting as a political weapon to deploy against opponents, it makes the law less capable of setting boundaries on political behavior.
The case against Trump’s post-election behavior doesn’t belong before a jury but before the American electorate. And for the voters who may have to decide whether Trump gets another term in office, it shouldn’t matter whether his state of mind last January was crazy or calculating or both.
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That’s because the contemplated criminal case hinges on (among other things) Trump’s state of mind. For him to have committed a crime, he must have known he had, in fact, lost the election when he tried to overturn it.
The political case against Trump, meanwhile, has always rested substantially on his alleged irrationality: that he inhabits a “post-truth” factual universe that rejects information damaging to his ego. If true, that would undermine the criminal case against him. The conflict points to a wider lesson about the law’s limited ability to regulate a polarized political system.
Carter’s ruling accepted an argument put forward by the congressional committee investigating the Capitol riot of Jan. 6, 2021. One of Trump’s lawyers claimed attorney-client privilege over emails, but the committee argued that they fell under the “crime-fraud exception.” Carter agreed.
The judge wrote that Trump “more likely than not” committed two crimes in seeking to halt the certification of electoral votes: obstruction of an official proceeding and conspiracy to defraud the United States. Each has several elements, but the most important is state of mind. Some laws require that a defendant acted “negligently” or “knowingly” or “recklessly” to be liable, but the intent requirement for the obstruction statute is higher — “corruptly.”
While Trump “justified the plan with allegations of election fraud,” Carter concluded, he “likely knew the justification was baseless.” Such conscious dishonesty would point toward a corrupt state of mind. The judge’s conclusion is not based on new evidence but already-public information, principally the statements of “numerous executive branch officials” who told Trump “that there was no evidence of fraud.”
But Trump was not exactly known for internalizing the counsel of subordinates when he did not want to hear it. Carter may be paying Trump a compliment he does not deserve in assuming that his political beliefs are grounded primarily in a weighing of empirical evidence — and that because the evidence did not support his fraud claims, he must not have believed them.
Trump’s critics maintained throughout his presidency that he marinated in “misinformation” and that his ego or ideology blinded him to adverse realities. House Speaker Nancy Pelosi (D-Calif.), speaking about his immigration policies in 2018, said the president was “either not knowing, not caring” or “delusional, in denial.” A characteristic CNN article in 2020 on Trump’s “surreal alternate universe on coronavirus” said the president “sees the world not as it is, but as he would like it to be.”
Rep. Jamie B. Raskin (D-Md.) in 2020 hammered Democrats’ message that Trump was fundamentally out of touch with reality by introducing legislation that would have created a panel of, among others, four psychiatrists with the power to remove a president. Yet now, Raskin’s Jan. 6 committee is eyeing a legal theory that would require proof that even on a matter tied closely to his ego, Trump saw reality clearly.
All this shows how the “reasonable person” standard at the core of U.S. law — which requires judging the actions of others based on an objective reference point — exists uneasily in a politically fractured society. Carter’s conclusion that Trump acted corruptly relied on the fact that, as he wrote, “the illegality of the plan was obvious.” And it’s true that any reasonable person in Trump’s position would have known their claims were false and their conduct outrageous.
But, at least on the subject of his election defeat, Trump is not a reasonable person. His denialism is an extreme example of modern political delusion, but it is just one example of the erosion of “shared reality” in U.S. politics. Other examples of partisan reality distortion include the false liberal convictions that Trump was a Russian asset or that Republican-run states today are imposing voting restrictions comparable to Jim Crow. As partisans adopt nonoverlapping beliefs about the political world, prosecutors, judges and juries lose a common standard by which to regulate political behavior.
The U.S. legal system is effective at sorting true facts from false ones — as in its determination in 2020 that the election was not stolen. But it isn’t well-equipped to divine the motives behind politicians’ propaganda. Even as polarization makes the law more tempting as a political weapon to deploy against opponents, it makes the law less capable of setting boundaries on political behavior.
The case against Trump’s post-election behavior doesn’t belong before a jury but before the American electorate. And for the voters who may have to decide whether Trump gets another term in office, it shouldn’t matter whether his state of mind last January was crazy or calculating or both.
