Intent matters in law because it matters to us personally. I may be temporarily angry with someone who accidentally trips me and causes me to fall flat on my face, but if I’m thinking clearly my anger won’t last. But I would be rightly angrier and for a much longer time at the person who deliberately tries to trip me, even if they fail.
That very human impulse is reflected in American law for a reason. In the end the law tries to serve our most fundamental human sensibilities and, while it may do so imperfectly at times, on balance there is usually superb wisdom in the law.
If Donald Trump should ever be made to stand before a court of law and answer for trying to mislead the American people about the outcome of the 2020 presidential election, it matters to the law — and it should matter to us as well — whether or not he believed his own story. Knowing Trump as I do, I’ve long been convinced that he knew perfectly well that he lost the election. But, as LTJG Daniel Kaffee says in the movie “A Few Good Men,” “It doesn’t matter what I believe, it only matters what I can prove.”
Well now we can prove Trump knew he lost the election. We know it to be true because, once again, he admitted as much. Trump occasionally says things inconsistent with a man who believes what he claims to believe about the 2020 election, but this time he said it in plain and unequivocal English.
It has now emerged that last summer Trump, speaking to a panel of historians, made a curious passing reference. Specifically he said these words: “When I didn’t win the election … .” Since 2020 Trump has steadfastly claimed that he actually won the election and that it was stolen from him.
The reason this utterance is important is because no reasonable person who believed what Trump claims to believe about the election would make it. Now, it doesn’t matter if you think Trump is a “reasonable person” or not, when trying him in a court of law that presumption is made. Unless he’s shown to be mentally unfit to stand trial, that will be the presumption going forward.
From there a lot of other things could follow. It might be reasonably inferred, for example, that Trump knew perfectly well that mayhem at the Capitol would be the immediate consequence of his inflammatory speech to the audience at The Ellipse. Such an inference is supported by his words and actions leading up to the day, his deliberate destruction of the White House phone records, his long reluctant delay to call for the national guard or other reinforcements to quell the insurrection, and so on.
All of this matters. And while we all know it to be true in our hearts that virtually every word from Trump is a lie, and on the rare occasion when he tells the truth, it is as often as not done by accident, we still need to prove it in court. Again, “It doesn’t matter what I believe, it only matters what I can prove.”
If Trump should ever have to face charges for causing an insurrection, his defense undoubtedly is going to be that he acted in good faith. He will allege that he really believed the 2020 election was stolen, that he acted according to that belief, that his actions were consistent with a president who thought one of our most sacred and fundamental rights — the right to a free and fair election — had been subverted,
But like most criminals Trump is a stupid one. His words often give away his criminal intent. The words of no criminal I know of are more well-documented than those of Donald Trump. A tireless prosecutor willing to sift through his millions of words and tens of thousands of tweets should have no difficulty building a stunning case against him, a case distinguished by treachery and his intent to deceive the American people.
Time and time again Trump gives himself away with his own words. The prosecutor willing to do the work should be able to destroy Trump with his most compelling witness against him: Donald John Trump himself. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.