The Dangers Of Legalistic Legillimency

THE journalist Michael Sean Winters who writes regularly for the National Catholic Reporter is one of the most underestimated writers who are currently working. Many times I've found things that I go over and over in my mind are apparently going on to more productive ends in his, sometimes it's things that he has thought of which I and those I've read haven't thought of.

His excellent analysis and excoriation of the Republicans' acquittal of Trump for fomenting and encouraging the seditious insurrection against the Capitol and the democratic form of government, Trump's impeachment: 'The cowards stand aside,' has many points I could write full posts on, I'll concentrate on one of those, the dodge of questioning whether or not Trump believed the lies he told to incite and encourage the insurrection, the assertion that if he did believe them, whatever that means, that means he's not guilty. It's a quasi-judicial form of the ridiculous claim that if a liar doesn't believe his lies are lies that means they aren't lies. Something which is impossible to prove and, so, is a permission given to those who you choose to pretend to believe that about.

Let us return to election night. In the early hours of the morning, he addressed a group of supporters in the White House. He listed some states he had indeed won, such as Florida and Texas. He prematurely claimed he had won Georgia and began casting aspersions on the decision by Fox News to call Arizona for Biden. He correctly said he was winning Pennsylvania, but failed to note that very few of the mail-in ballots had been counted. "We were getting ready to win this election," Trump said. "Frankly, we did win this election."

It was hard to know that night if he believed what he was saying. It is often difficult to know if Trump and his followers really believe the demonstrably false things that come from their mouths. One of the most dangerous qualities about a narcissist is their penchant for believing their own propaganda, which creates a variety of sincerity. As the ballots were counted and it became clear Trump had lost, his speech became more fantastical. After the votes in the states were certified and the electoral votes counted in the state capitals, he supported a bizarre legal challenge from the attorney general in Texas, which the U.S. Supreme Court dismissed without even granting it a hearing. By the fateful day in January when Congress was to ratify the votes from the states, his legal challenges had been tossed out in almost 60 cases. His last-minute effort to get the secretary of state in Georgia to "find" 11,780 votes, in a Jan. 2 phone call, showed how desperate and disconnected from reality Trump had become.

Intent is a key element in a crime but it is often difficult to nail it down when the accused is not really tethered to reality. Further, to sustain a charge of inciting an insurrection, you would think the former president's intent would need to be made crystal clear, that he wanted those people in that crowd to storm the capitol building and do … what? It is not at all clear how he thought this would play out. His defense lawyers and political allies argued that his repeated calls to fight were metaphoric, that his speech was no more an incitement than the speeches of many Democrats who sometimes use combative language.

It is a nice question: How did Trump expect the mob was going to "stop the steal"? Republicans say that the difficulty in answering that question required an acquittal because the connection between his fiery language and the actual misdeeds of the mob was necessarily too diffuse. Weeks later, we still are not sure what he or they intended. How could that be deemed a high crime?

Trump's defense, then, was that his language about fighting and stopping the steal was metaphoric. But what was the metaphor? Did he expect the mob to enter into the Senate or House chamber and put forward some amazingly persuasive argument that would convince enough of the legislators to toss out the certified Electoral College votes of the several states? Was he hoping they would make an appeal to the United Nations? Was he expecting divine intervention?

That lays it out as clearly and well as I've ever seen it laid out.

 

Of course, if Trump did believe his lies that would have meant he was dangerously delusional and should not have been allowed to remain in the presidency due to that self-serving, or rather Trump-serving claim made by the media and by Republicans. 

 

And that is true of the whole list of delusions that Trump would have had to be dangerously mentally impaired to have believed, including the effect that his words would have on his cult of fanatical followers. Clearly, as the House Managers pointed out, Trump had every reason to know what his words would incite in Washington, DC on January 6th because he knowingly and demonstrably incited some of the same Trumpzis to plot the attack on the Michigan Capital, the abduction of the Governor and her assassination, he clearly knew about that and other incidents which his words had incited, would be and attempted practice runs for what his cult did in Washington DC.

I don't buy for a second that that alleged judicial standard, that you have to demonstrate the state of mind of a liar to show that they knew they were lying, that their words would have the clearly intended effect that they would have, that you would have had to pretend that a result other than what had resulted from such language in the immediate weeks before something like the January 6th insurrection happened is a standard that is consistently applied in anything like a pose of objective equality.

I wonder why, for this, the old slogan "ignorance of the law is no excuse" is suspended so regularly for the likes of Trump, fo people in the government (though only some of them) and others who hold white-collar jobs of responsibility unwisely given to those prone to such delusion. Because that's what this standard is, it depends on something far more common and far less credibly believed than mere ignorance of statutes, though that as well.  Allowing some of the most dangerous of crimes against domestic tranquility, the rule of law, the very basis of legitimate government off because of the allegedly less than lucid state of mind of the criminal. I am absolutely certain that it isn't a standard that would be applied to a poor criminal accused of far less consequential and dangerous crimes unrelated to their job and their position in society. I'm sure judges would have no problem ignoring their probable genuine ignorance of the law or their ignorance that what they did was wrong, mistaking the sometimes less obviously untrue lies they told for a sometimes less obvious truth. I have absolutely every confidence that if it were possible to tally cases in which this alleged standard of telepathic conviction or acquittal were appplied that People of Color, the poor, the disfavored, probably even white women would not be granted the lenient standard of phony-psychological dismissal of guilt that rich, well-educated, white men, especially those who are Republican office holders, are given by tradition, by habit and by the choice of those who are lying that they believe they didn't know exactly what they are doing. 

 

It is one of the worse effects of the selling of the powerful elite on the lore and nonsense of psychology, that such uses of it as benefit the elite are allowed when it sets up an impossible burden of evidence demanded before the simple act of calling a liar a liar and stopping and punishing the most dangerous liars is permitted by the legal system or, as the abysmal impeachment and removal provisions of the Constitution puts in their power, by the Senate.  That kind of an out will never be applied evenly, it will always be a permission to get away with murder given to those favored by the established power, that's literally what the Republicans under the Constitution did for Trump, he got away with murder.   

I don't remember the name of the, I believe it was Washington Post writer who mocked a 1970s era Supreme Court ruling that dealt with the issue of the mind-set of journalists on some free-press issue.  He said when he started there were two states of mind among journalists, drunk and unconscious.  Dark humor over an issue of journalistic license to slander and libel, as I recall.  But it wasn't that much different from the absurd notion that the law, what lawyers claim in courts, what judges instruct juries as to what they should and shouldn't consider, what Supreme Court "justices" use to give out privileges to lie and to defame or to hold others accountable for telling the truth, to claim that that can hinge on the unknowable mental state of a president who lies repeatedly, flagrantly obviously knowing what they are doing by lying is as dangerous as it is an invitation for the kind of use of it we saw in Saturday's infamous acquittal.