Tuesday, June 14, 2022


Jennifer Rubin writes:
Legal scholars have entertained the argument that defeated former president Donald Trump can avoid prosecution for his attempt to overthrow the 2020 election on the grounds that he was so nuts that he believed his own election lies. But that argument can go only so far.

A defendant cannot hide behind “deliberate ignorance.” NBC News explains that a judge can "instruct a jury that it can find that a defendant acted knowingly if the defendant was aware of a high probability that something was true but deliberately avoided learning the truth.” Former attorney general William P. Barr’s testimony before the House Jan. 6 committee shows that Trump was not interested in the facts. His top aides repeatedly told him that none of the allegations of voter fraud were true; he promoted them anyway.

Plus, as constitutional scholar Laurence H. Tribe tells me, it certainly cannot be the case that someone who seeks to obstruct a congressional vote count (e.g., strong-arming his own vice president) is excused from criminal liability simply because he’s “genuinely convinced that Congress will get it wrong.” You do not get to arm-twist officials or send the mob to the Capitol because you really, really think you won.

Your motive may be “I am convinced I won,” but criminal intent is satisfied since “no matter what you believe, you cannot tell the secretary of state of Georgia to just ‘find 11,780 votes’ that do not actually exist to give you one more vote than your opponent secured,” Norman Eisen, former impeachment counsel, tweeted.
The fact that Trump was telegraphing his plan to discredit mail-in ballots even before Election Day in 2020 strongly suggests that he knew he was going to lose -- or did he sincerely believe he'd win (and then, after the votes were cast, believe he had won) while also believing that the haters and losers were determined to deprive him of his rightful victory? And if it's the latter, is he nuts, or is he just a fanatical believer in the Power of Positive Thinking, an idea he's used all his life to guide his actions and persuade himself that he's a winner?

I think he approached the election cynically, formulating plans to finagle an outcome favorable to himself, but I also think he works himself up to the belief that his delusions are real, or, at minimum, that it doesn't matter what's real because surely everybody finagles the way he finagles. I'm not sure he knew that there really weren't 11,780 Trump votes to be "found" in Georgia -- maybe he'd talked himself into believing all the crackpot scenarios he was entertaining, or maybe he assumed that the authorities in Georgia (and Michigan, Pennsylvania, Wisconsin, and Arizona) must be cheating somehow because he sure would if he were in their shoes, because everybody cheats, right? So therefore there must have been 11,780 votes that could be found for him.

But even if Trump believes that there is no election-results truth arrived at honestly and in good faith, he knows there are results -- if you want to look at it as cynically as he appears to -- that we declare to be truthful, whether or not they are. More important, he knows that there are legal procedures that ratify these results. They can be challenged in court, but Trump's efforts to do that failed repeatedly. Ultimately, those results are accepted as the truth, and Trump knows that, even if he doesn't believe they are the truth, or doesn't believe in truth.

So maybe he didn't believe he lost. But he knew the authorities said he lost, and that's reality, as ratified by the law. He knew an agreed-upon conclusion existed, even if he didn't believe it. So indict him already.

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