Trump and the Republican Party: “Detached From Reality”

The first two hearings of the January 6 Committee presented overwhelming evidence that Donald Trump’s Big Lie was either a knowing fabrication or the product of a mind that was, as former Attorney General Bill Barr put it, the product of a mind “detached from reality.” But which was it? The distinction may be significant in terms of Trump’s potential criminal liability for his conduct in the wake of the 2020 election. That conduct included, most notably, his role in provoking the insurrection at the Capitol on January 6. As the Committee is making clear, however, that horrifying event was only the culmination of a many faceted conspiracy to set aside the results of the election.

If Attorney General Merrick Garland is ever roused sufficiently to bring Trump before the bar of justice, it seems inevitable that Trump will insist that, despite mountains of evidence to the contrary—confirmed by his own senior advisers—he somehow believed that he had won the election. That belief, it may be argued, provided a justification for his frantic attempts to overturn certified election results and to prevent Biden’s inauguration as President. A number of commentators have suggested that such “willful blindness” to the facts on Trump’s part would afford him no legal shelter. Willful blindness, however, may be different from detachment from reality.

In a 2011 case, Global-Tech Appliances, Inc. v. Seb SA , the Supreme Court described a fairly narrow window for a prosecution on grounds of willful blindness:

While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.

Trump would, of course, deny having any such “subjective belief” and there may be no direct evidence of it. On the other hand, a jury might be permitted to reject his denials and conclude that, under all the circumstances, he had to have known the truth. Finally, as Professor Laurence Tribe has pointed out, there are some offenses with which Trump might be charged as to which proof of mens rea, or guilty knowledge, is not required. Even in such cases, however, it seems possible that, detachment from reality, if supported by competent medical testimony, could be offered as a defense.

Many of us believe that justice demands no less than the indictment, trial, conviction and incarceration of Donald Trump. But important as the demands of justice are, they are not the most important issue for the country. That issue is how to grapple with the depressing fact that the majority of Republicans remain as fully detached from reality as Trump is.

 A Hill-Harisx poll reported in The Hill, showed that:

• Fifty-six percent of registered Republican voters in the June 24-25 survey said Biden won the White House because of voter fraud while 25 percent he won fairly and 19 percent remain unsure.
• Eighty-eight percent of Democrats said Biden won fairly while 5 percent said voter fraud and 7 percent said unsure.
• Half of independents said Biden won fairly while 20 percent said he won through election tampering and 31 percent said they are unsure.

Inevitably, the detachment from reality suffered by Republican voters has been reflected in the electoral politics of 2022. On June 14, the Washington Post published a detailed analysis showing that “About a third of the way through the 2022 primaries, voters have nominated scores of Republican candidates for state and federal office who say the 2020 election was rigged.”

The Post’s analysis of pervasive denialism among Republican voters found confirmation in the latest primary results published the following day. For example, one winner was Jim Marchant, nominated for Secretary of State in Nevada. As the Post explained:

Marchant, who has said he would not have certified President Biden’s win in Nevada, is among several election deniers to win primaries for statewide offices that oversee elections, including secretaries of states, attorneys general and governors. The victories have come in states that could play a major role in the 2024 presidential election.

Some of the Republican candidates may carry a sincere but delusional belief in the Big Lie, while others simply cower in fear of Trump and primary opponents he may endorse. Either way, the threat to democracy is real and substantial.

That threat is one that Democrats can no longer afford to ignore or meet with only whines and grumbles. They must begin immediately to pay robust, focused and well-financed attention to contests for critical statewide offices. If they do not, they will have themselves largely to blame when they are found helpless to combat Republican corruption of the election in 2024.

On the other hand, Republicans’ lockstep embrace of the Big Lie presents an opportunity as well as a grave threat. While it is probably impossible to re-attach most Republicans to reality, that should not be the case with a sentient minority of that Party and with Independents. Even those who approve of this or that Trump policy, or who dislike Joe Biden, should be able to see the paramount danger of electing candidates who support a delusional fiction out of either fear or conviction. They must be persuaded to vote accordingly.