Commentators have said that Trump might have a good defense for his latest indictment. The prosecutors, they say, must show (among other things) that the ex-president knew that he was lying when he proclaimed again and again that the 2020 election was riddled with fraud and stolen from him.
Some of my past blog comments seem to support the Trumpistas’ position, for I have said that Trump is not a liar. For that conclusion I was relying on Harry G. Frankfort’s marvelous little book, On Bullshit.
Frankfort makes a convincing distinction between bullshit and lies. Lying calls for a degree of craftsmanship to get the lie accepted, and it also requires a concern for the truth. “In order to invent a lie at all, [the liar] must think he knows what is true. And in order to invent an effective lie, he must design his falsehood under the guidance of that truth.”
The liar, thus, has a concern for the truth. The bullshitter does not. A bullshitter’s “statement is grounded neither in a belief that it is true nor, as a lie must be, in a belief that it is not true. It is just this lack of connection to a concern with truth—this indifference to how things really are—that I regard as of the essence of bullshit.” And since our President does not seem to craft lies as much as utter falsehoods with an indifference to the truth, he is, by this definition, not a liar.
The bullshitter has more freedom than the liar. The bullshit artist “does not limit himself to inserting a certain falsehood at a certain point, and thus he is not constrained by the truths surrounding that point or intersecting it. He is prepared, as far as required, to fake the context as well.” Frankfort continues, “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.” The bullshitter is not rejecting the authority of truth, as the liar does. Instead, “he pays no attention to it at all.” Without regard to the truth, Trump makes assertions, such as that the election was stolen, to suit his purpose so as not to be the loser he was.
While Frankfort’s notions of bullshit fit Trump, I don’t believe that Trump’s attorneys will say, “Ladies and Gentlemen of the jury, Trump is not guilty. He is not a liar. He is a bullshitter. If the bullshit fits, you must acquit.”
Okay. Since “He is a bullshitter” is unlikely to be the defense, Trump’s attorneys may contend that he was speaking the truth about the election’s being stolen. Such an assertion, however, will require convincing evidence from the defense of electoral fraud serious enough to have altered the voting outcome (the so-called “outcome-determinative fraud”). After the 2020 election such claims were made over five dozen times and lost in court. No credible information has been found to support such an assertion, and none is likely to be discovered now.
A second defense, as has also been suggested by Trumpistas, is that Trump was not lying in his claims because he honestly believed that the election was stolen. I have been thinking about how that might play out in court.
A trial is not decided in the court of public opinion but in a real courtroom where the decision comes from a jury. We often say that a criminal defendant has the right to a trial by a jury of his peers. That is not in the Constitution. Instead, the Constitution allows the accused the right to be tried “by an impartial jury.” Some think that this means that the jurors must know nothing about the case to be a member of the jury. That is not the standard. Instead, a juror must be able to honestly pledge to decide the case, using common sense, on the evidence presented in court and the law as given by the judge. The jurors cannot decide the case on information from outside the trial. If I were called to be a juror, I would be asked whether I could set aside my conclusion that Trump is a bullshitter and could decide the case solely on the evidence and law presented at trial. If I am able to maintain impartiality, I would be a valid juror.
The indictment indicates that dozens of respected people — people who might be called as witnesses and whose testimony would have to be considered by the jury — told Trump that the screams of fraud were false. This information came to Trump from federal officials, state officials, White House officials, and unanimous court decisions. Many, if not most, came from conservatives and people whom Trump appointed and had praised. Using common sense, a jury seems likely to conclude that anyone who heard again and again from people he had trusted that fraud claims were bogus could not have honestly believed the opposite — at least not without countervailing proof.
Perhaps Trump does have countervailing evidence and will present witnesses who told him with a straight face that the election was stolen, and, moreover, that he chose to believe them in spite of the overwhelming evidence to the contrary. It does not mean, however, that he wins just because he could put forward such testimony.
Prosecution witnesses will testify as to what they said to Trump and explain why the cries of fraud were hogwash. If Trump has witnesses who testify that they told him otherwise, those witnesses will be asked what they told Trump to support their unsupported claim. All the witnesses can testify as to what Trump said in these conversations. Did he ask about the bases of the claims? Did he ask those claiming election fraud in Arizona, for example, why Arizona officials dismissed the claims of fraud? What is their proof? Since the election fraud deniers have the facts on their side, a jury is likely to believe that any normal person would believe the factual reports over those presenting false claims. Of course, you might maintain that Trump is not a normal person, but the jury can’t operate on preexisting knowledge of the ex-president, and an assumption of abnormality would be warranted only if evidence is presented to that effect. That would be fun to see.
It is the case, however, that mental states are often an important issue in a criminal trial. Think of a self-defense claim where the accused is not guilty of a homicide if he believed that his life was in danger. Sometimes the jury can be convinced of that from a thorough exploration of the killing’s context. Witnesses might testify that the victim was advancing on the defendant with a knife or ax or gun shouting frightening threats when the accused shot him. That might be analogous to Trump’s situation if all the credible people had told him that the election was stolen and had supported their opinions with convincing facts. Trump, in self-defense, might have thought it appropriate to behave as he did. However, that’s not what the credible people told him.
Many times in a self-defense case, there is no independent evidence about the killing’s context. Sometimes the facts seemingly contradict what the defendant may have claimed after the death. The victim may have had a cellphone or a wallet in his hand, but the defendant may have said, I thought I was going to die because I thought he had a gun. In these circumstances, the defendant almost always has to convincingly testify about the belief that his life was in danger to avoid a conviction. That seems analogous to Trump’s situation. Could his attorneys convince the jury that Trump honestly believed what was untrue? It would necessitate Trump’s testifying that despite repeated and credible reports, he continued to believe a false narrative. It is, of course, unlikely that he will testify at all; almost everyone seems to believe that he can’t win if he has to face cross-examination. That conviction seems assured if he testifies tells us a lot.
