Donald Trump's John Hinckley Jr. defense
He has to convince one juror that he was completely irrational.
Donald Trump has been indicted for his attempt to steal the 2020 election. That’s good. And also terrible. But also necessary.
Three thoughts about the indictment:
* The case depends on prosecutors being able to prove to a jury not just that Trump definitively lost the 2020 election — easy enough to do — but that he knew he lost and proceeded with his wild insurrectionist claims anyway. That might be more difficult.
…all of these charges require prosecutors to prove Trump knew he had lost the 2020 election. They will prove that every election fraud claim he made was false. They will show that everyone from his attorney general to his White House lawyers to state elected officials told him that his claims were false. They will remind jurors of just how catastrophic the results of his lies were on January 6. And none of that will be enough. This will be a trial about Donald Trump’s state of mind. If Trump can convince one juror that he believed that he won the 2020 election and that he was trying to prevent the election from being stolen with fraudulent votes, then that’s the ballgame.
In other words: Trump’s best defense against these charges is that he is and was wholly irrational, incapable of comprehending the plain evidence of his election loss and choosing instead to live in a world of magical thinking.
Call it the John Hinckley Jr. defense. After his assassination attempt on Ronald Reagan, Hinckley was found not guilty by reason of insanity. He spent more than 30 years in a mental hospital as a result. Trump tried to assassinate American democracy — and if he’s found not guilty, we may be punished with his return to the White House.
* House Republicans have been talking up the likelihood of a Joe Biden impeachment for some weeks now — not because there’s a there there, but because he’s a Democrat and they want to see him punished for that. (Hunter Biden is, unfortunate to say, a corrupt sleazeball, but there’s still been no real evidence showing Joe Biden was a participant.)
Anyway, I suspect the odds of impeachment are now a near-certainty. Some Republicans no doubt believe Biden is corrupt. But many will simply want to muddy the waters.
* The problem, of course, is that all of this may be too late. Roughly half of voters believe in Trump, still support him, still think he represents their best interests. Jan. 6 didn’t really move the needle on that. Even if Trump is convicted and somehow ends up in prison, we’re still stuck with our fellow citizens. Prosecuting Trump is necessary, but the problems he catalyzed won’t be contained even if he’s no longer on the scene. We’re past that now. God help us all.
Insanity defenses don't work like that. It's not enough to be delusional in a way that would justify your actions, you have to be delusional in a way that demonstrates a total lack of rational thought. Recall that John Hinckley Jr shot Ronald Reagan in order to impress Jodi Foster. There is no connection between action and goal in that case that can rationally be called a "plan". NGI was an appropriate verdict because Hinckley's actions were more symptom than behavior.
Contrast this with Trump: he may have irrationally chosen to believe that he had won the 2020 election, that any result other than his victory was illegitimate, etc. It would fit with his character for that to be the case, frankly. But that doesn't actually help an NGI defense when he's accused of attempting to hold on to power rather than admit defeat. It might (probably wouldn't, but might) have helped an NGI defense in the documents case, were he to argue that he irrationally believed that he retained the presidency despite all evidence to the contrary, and that he retained the documents in order to continue his delusional presidency, but it doesn't help him in the coup case.
Yes, in one key facet this indictment is weaker than Smith’s first one. As you say, he has to convince one juror he acted rationally. The expected Georgia indictment should be like document case. Trump did these things; they are crimes; even if he believed they were justified, he is guilty (the “mens rea” threshold is much lower).
The key will be getting him on the witness stand under oath. A skilled prosecutor (aka Jack Smith) will get him to bluster and dissemble. We could indeed see a trial before the election because the issues surrounding classified documents don’t exist here.
Gotta have some thread to hang onto.