Does anyone truly believe that Trump doesn’t truly believe the election was stolen in 2020?

According to the indictment, the former President does not have to be right on the facts or the law.  The underlying issue is not what actually happened and what could be done about it.  He simply has to believe what he said was true and the entire case goes away.

Last week, Special Counsel Jack Smith issued yet another round of indictments against former President Donald Trump, alleging that he conspired against the United States government in an attempt to block the peaceful transfer of power.  The charges include conspiracy to defraud the United States, obstruction of and an attempt to obstruct an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against rights.  At issue is whether the former President knowingly lied when he claimed the 2020 election had been stolen from him and whether he believed the legal strategies he pursued to prevent Joe Biden from becoming President were legitimate.  “The attack on our nation’s Capitol on January 6, 2021, was an unprecedented assault on the seat of American democracy,” Special Counsel Smith said in brief remarks after releasing the 45-page indictment. “As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government: the nation’s process of collecting, counting and certifying the results of the presidential election.”  In other words, the outcome of the case depends entirely on the former President’s personal beliefs on the 2020 election and the potential remedies for a stolen election.  Special Counsel Smith is not alleging that an election cannot be objected to or slates of electors cannot be rejected by Congress, as has happened many times in the past when Democrats spearheaded attempts to overturn elections in 2000, 2004, and 2016, basically every time they have lost since 1988.  Instead, he is arguing that President Trump committed a conspiracy because he knowingly lied about the outcome of the election and former Vice President Mike Pence’s role in certifying the results.  Special Counsel Smith believes the President lied because advisors and other people in his circle told him there was no widespread fraud (or whatever term of art you would like to use) and that VP Pence did not have the statutory authority to halt the certification process or reject slates of electors.  Thus, this rather novel reading of these conspiracy statutes can be reduced to President Trump’s state of mind.   Did he believe the advice he was given by those on his team urging him to forgo further objections and lie about it anyway, or did he reject that advice for whatever reason and state what he believed to be the truth at the time?  Crucially in Mr. Smith’s framing, President Trump does not have to be right on the facts or the law.  The underlying issue is not what actually happened and what could be done about it.  It is what the former President thinks happened and what he felt could be done about it.  He simply had to believe what he said was true and the entire case goes away.

This prompts an obvious question:  Does anyone truly believe that Trump doesn’t truly believe he was robbed of a rightful victory?  This is distinct from believing President Trump is wrong, crazy, a conspiracy theorist, an authoritarian, would-be dictator, monster, or any other label you would like to apply.  The election could well have been the most secure in history as the government proclaimed it shortly after, and the former President could still believe otherwise.  People believe things that are wrong all the time, and when they state those beliefs they are not lying.  They are incorrect or misinformed.  Moreover, they do so in the face of contrary evidence and advice, also all the time.  Someone can tell you something that is obviously true, fully backed by the evidence, and you can still choose not to believe it.  This happens countless times per day around the world on matters large and small.  Humans are not rational information processing machines that universally reach the same conclusion based on the same set of facts.  Prior beliefs, cognitive bias, emotional responses, and other peculiarities of our minds all factor into the conclusions we reach.  Of course, ascertaining what someone truly believes has always been a tricky proposition.  We cannot open up their skulls and peer into the inner workings of their brain.  The best we can go on is what they say they believe, and in that regard we often look to the consistency of their statements and a more general sense of their conviction on the matter.  If a person consistently says what they think and does so with the requisite passion that underlies belief, we will usually conclude they are telling the truth about those beliefs whether or not we personally agree, disagree, or have reached no conclusion on our own.  If, however, they prove inconsistent, saying different things from day to day or over time, or appear as if they are simply saying something just to say it, we are frequently correct in concluding they are not being honest about their beliefs.  Fortunately or unfortunately, there simply isn’t much else we can base our conclusions on.  Even a lie detector test relies upon consistency and our emotional response rather than any objective assessment because, at least with current technology, there is none.

By this standard, it is almost impossible to conclude that President Trump was lying about the results of the 2020 election and is therefore guilty of these charges.  He has never – as in not once, not ever – accepted the result as legitimate.  He has maintained his belief that the election was both rigged and that Vice President Pence failed to exercise his authority since the election itself.  Moreover, he has done so long after it ceased to be advantageous to his current political goals.  It was one thing to lie about the results and potential remedies in 2020 when there was at least the chance, however, small of maintaining power, but at this point, one of the most frequent criticisms of the former President is that he is far too obsessed with 2020 and wants to relitigate the past rather than win the future.  Late last year, for example, conservative commentator, David Strom of HotAir.com responded to a Trump post on Truth Social, which claimed “So, with the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION in working closely with Big Tech Companies, the DNC, & the Democrat Party, do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION?  A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.  Our great ‘Founders’ did not want and would not condone False and Fraudulent Elections!”  Mr. Strom’s response typifies the frustration of many more centrist conservatives.  “America is facing huge economic problems, international problems, and huge internal divisions that are tearing the country apart. Nobody but a small fringe wants to re-litigate the 2020 elections. Not only is that intuitively obvious, the 2022 midterm elections put an exclamation point on that fact. Candidates that looked back to the 2020 elections lost, those who looked forward to solving problems won.”  Similarly, the former President was heavily criticized after the midterm elections for endorsing candidates that shared his grievances over 2020.  PowerLine blog’s John Hinderlaker alluded to his obsession with the past in the immediate aftermath.  “A consensus is emerging among Republicans that it is time for Donald Trump to get off the stage and stop damaging his party and his country.”  In his opinion, “Trump is toast. He has a few fanatical followers, most of whom were never reliable Republicans or even consistent voters. They can go down with his ship if they want to. But the rest of us need to look ahead and begin the process of choosing a vastly better candidate in 2024. That will be a low bar.”  More recently, as in just last month, President Trump vehemently and emphatically repeated his claims that the election was fraudulent to Fox News’ Brett Baier.  “First of all, I won in 2020 by a lot,” he said.  Mr. Baier, however, insisted “You lost the 2020 election.”  Trump replied, “They were counting ballots, not the authenticity of the ballot.  The ballots were fake ballots.”

It is difficult to see why he would persist in these claims when they are now considered detrimental by many unless he truly believed it.  Liars change their story to fit the needs of the moment; the former President has certainly done so many times before himself, as have most politicians when it is convenient.  The needs of the moment are – at least according to most – moving forward instead of looking backward.  Trump, however, continues to look backward because he believes it.  Of course, Democrats and assorted Trump opponents are likely to respond to this line of reasoning by differentiating generalized claims of fraud from the specific remedy the former President embraced on January 6, that the Vice President, as President of the Senate, has the power to unilaterally block slates of electors on a state-by-state basis.  In this view, President Trump may truly believe the election was stolen from him, but he lied about how he might remain in office to advance his own personal power.  The lie about the authority of the Vice President then becomes the basis of the conspiracy charges, but even here, President Trump was acting on the legal advice of John Eastman, who is believed to be an unnamed co-conspirator in the indictment.  Last week, Newsweek reported, “Eastman, a prominent figure in conservative legal circles, gained national prominence during the months between the 2020 election and the January 6, 2021, Capital riot, during which time he helped Trump craft the dubious legal theory behind his efforts to stay in power after losing to Joe Biden. Most notably, he is credited for proposing the debunked theory that Vice President Mike Pence had the authority to throw out the election results during the certification process.  Eastman is now widely believed to be one of the six unnamed co-conspirators in the Department of Justice (DOJ) and special counsel Jack Smith’s federal criminal indictment against Trump for his attempts to overturn the election.”  Mr. Eastman, however, continues to stand by his legal reasoning as recently as last week.   “There’s actually a provision in the Declaration of Independence that a people will suffer abuses while they remain sufferable, tolerable while they remain tolerable,” he told Tom Klingenstein, chairman of the Claremont Institute’s Board of Directors. “At some point, abuses become so intolerable that it becomes not only their right but their duty to alter or abolish the existing government.  So that’s the question: have the abuses or the threat of abuses become so intolerable that we have to be willing to push back?”

You might disagree with Mr. Eastman as is your right.  Personally, I disagree with him myself, having read the statute in question and reached the lay conclusion that the Vice President does not have this authority, but my agreement or disagreement is irrelevant for two reasons.  First, only the courts can decide whether a legal theory is legitimate.  The media is fond of using terms like “debunked” or “dubious” to describe Mr. Eastman’s positions.  In June, Newsweek put it this way, “The day before the January 6, 2021, Capital riot, Eastman met with Mike Pence in the Oval Office and falsely claimed that the vice president had the constitutional authority to throw out the election results during the certification process.”  The theory, however, has never been tested.  Vice President Pence did not reject any electors and no court has provided a ruling.  This does not mean it’s likely the theory would be upheld, but claims that it has been “debunked” or that Mr. Eastman was necessarily lying when he put forward the theory are flatly untrue.  We do not know how the court will rule, and – if the anticipation and accompanying anxiety that always greets major rulings is any indication – the courts are often difficult to predict.  Second and more importantly, lawyers in general, perhaps especially government lawyers, put forward novel legal theories that have never been tested all the time.  Many have noted the irony that Special Counsel’s Smith’s charge that speech can rise to the level of conspiracy if it is false is itself a novel theory, as is District Attorney Alvin Bragg’s indictment which near magically transforms a misdemeanor into a felony.  The statues in both cases have never been used this way in the history of the country.  President Joe Biden himself has cited multiple novel legal theories to support Executive Orders in the less than three years he’s been in office – in some cases after claiming he didn’t have the authority he now insists is rightfully his as President.  Most significantly, he asserted that the Occupational Health and Safety Act empowers the President to mandate vaccines nationwide, a position that was later rejected by the Supreme Court.  Likewise, he claimed to have the power to unilaterally forgive student loan debt as a result of legislation passed after 9-11.  This was likewise rejected by the courts.  These and other debunked theories were all put forward by lawyers while other lawyers strenuously disagreed.  Was President Biden lying when he embraced them or merely picking and choosing what he saw as the most advantageous advice for him at the time?  Interestingly, in both cases, President Biden just happened to side with the theory that gave him the power to accomplish his goals.  As others have noted, Special Counsel Smith would have you believe this might be a crime, that a President cannot endorse a theory for their own benefit and influence the nature of government because of it, if in their heart of hearts, they do not truly believe it themselves.

This, of course, is an absurdist position, one that runs contrary to how the courts have always functioned in our Republic, much less the limitations of ascertaining true and untrue beliefs.  Similarly, it has been noted that this indictment is particularly concerning because the lawful speech of a duly elected President has been weaponized into a criminal charge, also for the first time in our history.  There is some obvious truth to that, but let’s be serious:  This formulation will never be used against anyone except Donald Trump.  It exists purely to indict him and him alone.  For his part, the former President has taken his third indictment in stride, joking that he only needs “one more” to guarantee an election victory, but this is no laughing matter.  The former President now faces hundreds of years in prison, more than a murderer or child rapist.  Even before the January 6 related indictment, the former President faced violations of everything from the Espionage Act to Obstruction of Justice, conspiracy, and false statements over his handling of classified documents.  Each violation of the Espionage Act has a maximum sentence of ten years.  Tampering, a maximum of 20.  Scheme to Conceal and False Statements, five.  Obstruction of Justice the same.  All told, a conviction on this indictment alone could lead to over 200 years in prison if the judge opts for consecutive rather than concurrent sentences.  If President Trump were immortal, he might emerge in the year 2223, a mere century before Star Trek was supposed to take place.  Even if we assume the former President would not be sentenced to the maximum time, he could easily be looking at a hundred years in jail.  The website Just Security recently detailed how the process works.  “Section 3553 directs courts to examine ‘the nature and circumstances of the offense’ and the defendant’s characteristics. It also requires courts to consider the purposes of criminal sentences, specifically the need to: Impose a sentence consistent with the seriousness of the offense, Promote respect for the law, Provide just punishment, Deter future criminal conduct, Protect the public from the defendant’s potential future criminal conduct, Provide rehabilitation in the form of training, medical care, and other treatment, Avoid undue disparities among similarly situated defendants who engaged in similar conduct.”  They continued to estimate Trump’s exposure under this standard, between 17.5 to 22 years for the Espionage Act violations, and another five to nine years for tampering and concealment related charges.  At the same time, they urge appropriate caution considering “the United States v. Donald J. Trump is an unprecedented case for a variety of reasons that could be relevant to sentencing.”  This is a strong candidate for understatement of the year.

A conservative friend asked me recently if I believe he will actually do any jail time.  I replied:  Who knows?  At some point, one would hope that the long promised adults are actually put in charge and someone in a position of authority would realize that – even if the former President is guilty of some of these charges – sentences that last until the start of the promised future in Star Trek are ridiculous, but that hasn’t happened yet and perhaps never well.