Have you ever had one of those moments when you suddenly become actually aware of something you’ve really known all along but just hadn’t realized yet? That’s what happened to me when I saw President Trump answer George Stephanopoulos’s questions about continuing to accept campaign help from hostile foreign powers. I’m a retired trial and appeals lawyer and former law school professor. Watching Trump respond in the Stephanopoulos interview made me suddenly realize that Donald Trump may actually be innocent of any criminal wrongdoing in the myriad matters of concern to those who respect good government and honest public service. That could be so because the President is criminally insane.
Although the criminal insanity defense is most frequently dramatized in the context of homicide, the defense applies to any crime. In briefest summary, someone criminally insane doesn’t know the difference between right and wrong. Here is a useful description from Findlaw.com —
The first known recognition of insanity as a defense to criminal charges was recorded in a 1581 English legal treatise stating that, "If a madman or a natural fool, or a lunatic in the time of his lunacy" kills someone, they can't be held accountable. British courts came up with the "wild beast" test in the 18th Century, in which defendants were not to be convicted if they understood the crime no better than "an infant, a brute, or a wild beast."
Besides the fact that courts no longer use the terms "lunatic" or "wild beast," current laws allowing for the insanity defense follow a similar logic. The legal basis for insanity was codified into British law in the mid-19th Century with the M'Naughten Rule, which is used in a majority of U.S. states and other jurisdictions around the world today.
Further explanation comes from Cornell University’s Legal Information Institute —
The "M'Naghten rule" was a standard to be applied by the jury, after hearing medical testimony from prosecution and defense experts. The rule created a presumption of sanity, unless the defense proved "at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong."
In a kind of slow-motion-live-frog-boiled situation, I’ve suddenly realized that a mountain of evidence seems to have risen up, bit by bit, Tweet by Tweet, showing the two key elements of the classic insanity defense. The first of these elements, that the President suffers from a defect of reason from disease of the mind, has been widely discussed, sometimes on our own DK blogs, by voices both popular and professional. People might differ on how compelling the evidence of mental illness has become, and ultimately adverse experts may have their say. But no reasonable person should dispute that evidence of mental disability exists, examples are many and the accumulation has continued long and persistently.
The second element of the defense finds support in the equally imposing pile of examples that the patient doesn’t seem able, has never seemed able, to even perceive that anything he ever does is wrong. A few examples —
- Don’t rent apartments to people marked C? I can do whatever I want with my buildings, dammit!
- Barge into dressing rooms full of naked teenage girls? I can do whatever I want with my beauty pageant!
- Party with porn stars while the Mrs. bears heirs? I can do whatever I want!
- Surprise unconsenting women by grabbing at their privates? I can do whatever I want!
- Tweet myriad spews of nonsensical argle bargle at odd times and places? I can do whatever I want!
- Lie about observable physical reality to the point that instances of truth telling become coincidental? I can do whatever I want!
- Completely suppress all meaningful Administration compliance with efforts by Congress to conduct its historical and necessary oversight duties? I can do whatever I want!
- Order subordinates to disregard subpoenas, injunctions and other legal process? I can do whatever I want!
- Accept foreign help for his campaign? I can do whatever I want!
What Mr. Stephanopoulos rubbed our nose into, with his recent interview, is the way that Donald Trump responds whenever he is confronted by questions like these. Trump explains, as sincerely as he possibly can, that he doesn’t see anything wrong with it and doesn’t understand why anybody should question what a typical and ordinary thing this is that Trump is being questioned about. In a rather dismal paraphrase of the famous Nixon quote, nothing is a crime if an insane President does it.
Frankly, this realization appalls Your Obedient Servant quite as much as it might be disagreeable to anyone else. I have argued in this blog that the House should not send Articles of Impeachment to the Senate before the 2020 elections. I have thought that even if Trump failed to make political hay from impeachment, we would be handing him, unnecessarily, a potentially powerful propaganda tool in the form of a more reasonable claim of exoneration, by Senate acquittal, than he could ever otherwise make. I have been a sometimes lonely voice supporting Nancy Pelosi’s slow walk of impeachment in the House. Remember this, too. The House can only unleash impeachment once prior to the election, whether or not it’s a good idea. But while we can always do it later, we can never take it back.
Still, this latest realization, about Trump’s possible criminal insanity, changes the calculus. That I could be wrong about impeaching Trump before the election means nothing, but it is much more consequential if Speaker Pelosi is wrong, too. Yet, if Donald Trump is criminally insane, never to be held to account for his numberless offenses, impeaching him is the only form of accountability we may ever have, sort of like Robert Mueller III told us.
Discuss.
P.S. The Stephanopoulos interview of Trump: