Josh Marshall at Talking Points Memo takes aim at a particular talking point that seems to claim the latest indictments require the government to prove Trump knew he was lying about the election to hold him accountable for his actions. As Marshall explains in Vol 2. No. 49: Shorter Trump: Was That Wrong? And Other Improbable Trump Defenses
I wanted to note two points about possible Trump defenses that haven’t so much been ignored by legal experts as perhaps simply assumed and thus left unstated. It’s worth stating them explicitly.
We’ve discussed many times the kind of reality distortion field that exists around Donald Trump. When Trump is caught red-handed, which is frequently, we’re routinely hit with the question of whether Trump really knew that what he was doing was wrong or illegal or whether it’s possible that he might really have thought his lie was true. Why he should be accorded this extraordinary accommodation is never really explained clearly or adequately. But it’s part and parcel of the world of Trump.
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The idea is, that if Trump sincerely believed his lie was “true”— he can’t really be held accountable for it. It’s not really a lie if you believe it.
I bring this up here because Marshall is picking up on something I’m also seeing, the idea that keeps turning up in the press that the government must somehow prove that Trump was not only telling lies, but that he knew he was telling lies, and still chose to do so.
It’s being conflated with freedom of speech. Something may be completely completely wrong, totally fact free — but you’re not lying if you believe it to be true and you have every right to say it.
Marshall would beg to differ:
But here’s the thing. Prosecutors don’t need to prove what Trump believed. That’s in part because truly proving belief is a fool’s errand since we are fundamentally stuck with the self-serving testimony of the person whose state of mind we’re trying to discern. Good liars lie consistently. Pathological liars lie in a way that they even partly convince themselves. As we know from all our experience, people have a great ability to believe what they want to believe or what is helpful for them to believe. The standard isn’t what someone claims they believed but whether it was a reasonable belief.
It’s peak Trump to lead the criminal justice system around by its nose with ludicrous claims about what he believed.But the law provides a clear way around this: what was it reasonable to believe?
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Further, Marshall points out that this goes far beyond free speech. Whether or not you believe something to be true, that still doesn’t permit you to break the law.
Update:
A front page story at the Washington Post lays out the theory that the government must prove Trump knew he was lying. Assuming the link works, this is the story.
...Central to special counsel Jack Smith’s case is the accusation that Trump knew his claims were lies. Evidence of a defendant’s intent is often critical to criminal prosecutions, and it may be the most crucial element of Smith’s case against Trump.
“These claims were false, and the Defendant knew they were false,” the indictment’s first page declares, staking out the boundaries of what will probably be a high-stakes legal battlefield inside Trump’s brain….
...At trial, Smith “needs to show that all of the false statements Trump made about the election, which the indictment chronicles in great detail, were understood by Trump to be false; otherwise, it becomes a case about political speech and First Amendment rights, and that’s not where the government wants to be,”Kelner said. “There is a decades-old question about whether, in the privacy of his own office or bedroom, Donald Trump admits to things that he doesn’t admit publicly or whether, even when he’s staring at himself in the bathroom mirror shaving, he’s telling himself the same lies that he tells the rest of us. I don’t think we know the answer. It may be an unanswerable question, and that’s one of the challenges facing Jack Smith.”
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Keep in mind that the attorney making this statement, Robert K. Kelner, gets paid highly for advice like this.
I wonder if this is why the press was so reluctant to call out Trump on lies during his term in the White House. “We can’t call it a lie if he really believes it.” It seems to be a media convention that since all politicians lie, something understood to be ‘political speech’ cannot be held to the standards that would be applied to non-poliiticians.
Or maybe it has something to do with the fact that reporters who call out lies don’t get their calls returned or exclusive interviews, hmmm?
The article does eventually get around to quoting others who differ on this, and that there is evidence to present:
But Tuesday’s indictment lays out instances in which Trump appears to acknowledge privately that he had lost the election and that there was no legal way to change that.
Several examples follow. There may well be more.
In any case, it’s odd to think that, for one example, Trump deflating and inflating the value of his properties depending on whether he was paying taxes or looking to take out a loan wouldn’t lead to criminal liability on the grounds that is what he honestly believed in either case.
Nice work if you can get it — and get away with it.
UPDATE:
The NY Times cites a number of Republicans claiming that Trump’s lies are covered by Freedom of Speech, but doesn’t buy into the government needing to prove Trump knew he was lying. Perhaps it’s because The NY Times has had far longer exposure to Trump’s behavior going back decades, versus WAPO?
Running through the indictment charging former President Donald J. Trump with conspiring to overturn the 2020 election was a consistent theme: He is an inveterate and knowing liar… *
...The indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.
...Legal experts were skeptical about the strength of those [First Amendment] claims as a defense. They pointed out that the indictment said on its second page that all Americans had the right to say what they wanted about the election — even if it was false. But, the indictment asserts, it is illegal to use those false claims to engage in criminal conduct, the experts said.
An individual’s free-speech rights essentially end as soon as those words become evidence of criminality, they said. In the case of the indictment against Mr. Trump, the prosecutors argue that Mr. Trump used his statements to persuade others to engage in criminal conduct with him, like signing fake slates of electors or pressuring Vice President Mike Pence to block or delay Electoral College certification of President Biden’s victory.
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* Well what do you know? The NY Times can finally say in print that Trump is a liar!
Among other observations, the Times notes Trump’s lawyers may do better portraying him as the victim of bad legal advice than arguing a defense based on the First Amendment…..
UPDATE 8-3-23 6:00 pm ET:
David Kurtz at TPM addresses the press and its presumption that Trump’s right to free speech excuses him and his lies from the charges in the latest indictment. From Morning Memo:
As soon as I saw the headline, I knew this NYT story was going to be bad: “Trump Election Charges Set Up Clash of Lies Versus Free Speech.” No. No, it does not.
Both-sides coverage in politics is toxic; in legal coverage it’s so bad it becomes almost funny. But of course in typical legal matters we rarely get both-sides coverage. Instead, it skews heavily in favor of the narrative of law enforcement and prosecutors. But when a politician (let alone Trump) is the defendant, suddenly there’s a detached remove from the underlying facts. Conspiracy to overthrow the government or just political puffery in the spirit of stump speaking? Who can say, really? We’ll leave to you, dear reader, to decide.
Kurtz goes on to point at what the Times puts at the bottom of the story (which is linked above in the previous update) and how the way the whole issue is presented can leave readers who don’t get past the headline with a false understanding of what’s going on.
Trust me, folks. This is not going to be a showdown over the limits of the First Amendment. How do I know? Well, one way is by reading the bottom half of the same NYT story, where legal experts shred the Trump defenses.
But by then of course the entire top half of the story has framed it up as a legitimately titanic clash over First Amendment freedoms. Readers who don’t make it past the halfway mark of the story will be forgiven for coming away with a very different impression of Trump’s prospects at trial.
For those in the back, here’s a good explanatory thread on why the First Amendment is not implicated here.
Kurtz follows up by throwing some shade at the Wall Street Journal’s attempts to make it a messaging war. As Kurtz emphasizes, this is covering what is a criminal prosecution like it’s just another political story.
At NPR’s All Things Considered, Ailsa Chang talks with Stetson Law professor Ciara Torres-Spelliscy on just how far freedom of speech goes before there are consequences for lying. Trump's legal defense focuses on free speech — will that strategy hold up in court? The transcript isn’t available yet; it’s a four minute audio.
Short version: there are limits on how far freedom of speech can be stretched to excuse lying in the service of committing a crime. Trump is free to say the election is stolen — but he’s not free to tell officials in Georgia to manufacture votes for him because he says the election is stolen.
Laura Clawson has a short post: The media has embraced the claim that free speech means freedom to commit crimes.
It’s bad enough that one of the main Republican talking points regarding Donald Trump’s latest federal criminal charges is an attempt to erase the distinction between free speech and criminal conspiracy to defraud the U.S. government, obstruction of an official proceeding, and conspiracy against rights. What’s worse is that the traditional media is, in its “neutral” mode of reporting, taking these claims seriously.
There is some pushback taking place, but it’s clear that the way the right wing has trained the media to repeat its talking points is going to make this a messaging battle on top of the courtroom battles.
UPDATE: 8-3-23 9:20 pm ET
I referenced David Kurtz and the Morning Memo at Talking Points Memo earlier today. Regarding the opening bits on the indictment and free speech, Josh Marshall picks up on it with a followup.
I’m glad David hit this point in The Morning Memo. In addition to the Times article he references, the Times also published a piece by Tom Edsall (the writer who perhaps most consistently drives me crazy) casting the Trump indictment as part of a larger story of “the left’s” turn away from free speech. That premise about free speech is a complicated matter in its own right. But, as David notes, it has nothing to do with this case. The case has nothing to do with platforms or hate speech or misinformation or anything else. This is a case of a group of individuals taking coordinated and affirmative non-speech steps (i.e., a conspiracy) to fraudulently change the results of a lawful election.
On the whole false equivalency/bothsideism Marshall is commenting on here, he closes with this:
Again, Republicans make all sorts of silly, bad faith arguments. I only note them here because rather than prove any commonality and double standard, they show the glaring difference. Republicans’ examples of Democrats who took issue with elections are examples in which the candidates didn’t take any steps to alter the votes, block the legal counting of votes, or do anything else to change the lawful result. This basic difference could scarcely be more clear.
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It could hardly be more clear — unless you are a member of the press determined to avoid acknowledging any difference between the parties, lest it be seen as the dreaded “liberal media bias.”