Jurisprudence

Trump Knows His Only Legal Hope Is to Win in the Court of Public Opinion

That’s why he keeps tweeting about how he doesn’t understand enough to break the law.

Donald Trump.
Photo illustration by Slate. Photo by Oliver Contreras - Pool/Getty Images.

As the metaphorical noose tightens around Donald Trump’s corporeal neck, he is turning to his ever more inevitable legal defense: “I can’t have broken the law because I don’t actually understand the law.” This isn’t being advanced in a court of law; it’s a play for the court of truth and public opinion, and that’s the only reason it could work.

The past two weeks have brought plenty of signs that legal accountability is closing in on Trump: Michael Cohen was sentenced. We learned the U.S. Attorney’s Office for the Southern District of New York had entered into a nonprosecution agreement with American Media Inc., in which AMI—owner of the National Enquirer—acknowledged that it deliberately engaged in “catch and kill” practices by purchasing the rights to a story from a woman about an extramarital relationship with Trump, in order “to suppress the woman’s story so as to prevent it from influencing the election.” At this moment, the Trump campaign, the inauguration committee, and the family businesses are all under investigation.

And in response, on Thursday, the current president tweeted this:

I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called “advice of counsel,” and a lawyer has great liability if a mistake is made. That is why they get paid.

The tweeting went on, but you get the gist: The president is apparently claiming that the extremely wealthy cannot form the requisite mental intent to commit campaign finance–related crimes, because they pay expensive lawyers who protect them from doing so. As my colleague Ben Mathis-Lilley immediately observed, it’s not the case that the president is off the hook because his lawyer knew about the crimes. We don’t yet know what the president knew, but his arguments that he knew absolutely nothing grow more threadbare by the day. Smart lawyers are now making the case that it is no longer plausible that Trump did not “knowingly and willingly” participate in some of the campaign finance–related crimes to which Cohen has now pleaded guilty. As former federal prosecutor Mimi Rocah explained at some length on Amicus, you can be charged as part of conspiracy even if you didn’t have meetings or phone calls with you co-conspirators, so long as you took action to forward the aims of the conspiracy. Each time the president tweets “no collusion,” he introduces language that deliberately distorts the actual crimes being investigated. Also, just because Trump doesn’t understand federal conspiracy law doesn’t make him innocent, as he continues to assert. Even Fox News’ senior legal analyst is clear about stating that these are potentially serious criminal allegations.

We are rapidly arriving at the place where Trump’s sole remaining defense will be that he isn’t guilty because he just doesn’t understand the law. As Elie Mystal pointed out more than a year ago, this appeared to be Trump’s chief defense to charges of obstruction of justice, too:

What comes through here is, again, that Donald Trump doesn’t know what obstruction of justice is. Take the “red line” thing. If you walk him through all of the elements of obstruction of justice, he’ll say yes to all of it. Yes, he’d only hire people who promised to make Russia go away. Yes, he’d fire people who investigate him or his family. Yes, he thinks Jeff Sessions, James Comey, Robert Mueller, and Rod Rosenstein were put on this Earth to help him avoid charges stemming from his own dealings. But if you asked him plainly, “would you obstruct an investigation,” he’d say “no.” OBSTRUCTION, he’s been told, is a “big word” that he should avoid at all costs.

Trump is now bending a version of this same defense around the big word collusion and the hush money claims. He’s essentially trying to argue that this is all not relevant to him, because the only way he could have known that these “private transactions,” as he calls them, were actually crimes is if his lawyers told him.

This is nonsense. One can commit criminal acts even if one’s attorneys fail to warn—plus, it remains to be seen whether Cohen advised Trump these payments were illegal. But to Trump, none of this sticks to him, it’s all Cohen’s fault. He’s again saying, “I’m not a details guy. I pay others to form my knowledge and intent.” This isn’t a new move; Paul Rosenzweig flagged this argument in 2017 when he noted how Trump defenders liked to suggest that there could be no obstruction because “the president was acting like a corporate CEO and not the president, and that he simply did not know how the Executive Branch functioned.” Rosenzweig thought that this might prove Trump’s most effective defense. It may even be the case that the president can ride his I’m-a-bonehead defense all the way through this inquiry. Again, this isn’t a legal argument so much as a meta-claim about why law doesn’t apply to him.

When Trump tweeted a bunch of crazy crap Sunday morning about Saturday Night Live and collusion, he was again signaling that he doesn’t understand anything. When his lawyer, Rudy Giuliani, went on the Sunday shows and said that Michael Cohen’s repeated lies matter more than Trump’s because, er, “the president’s not under oath. And the president tried to do the best he can to remember what happened back at a time when he was the busiest man in the world,” he is again invoking the “busy man” defense, except now it’s to say that Donald Trump was not only confused about the law, but also about the facts, and also he only needs to be truthful “under oath.” And Giuliani helped nobody when he tried to explain that under the Law of Trump, the direction of payments to silence women was not a “big” crime because “nobody got killed, nobody got robbed.” That one was so bad that just two days later, Giuliani walked it all back. “CORRECTION: I didn’t say payments were not a big crime,” he tweeted.

Watch for the pattern: The president is both too big and too small to be held to legal account. He is too busy and too important. But also, he doesn’t understand, and he cannot recall. The crimes weren’t “big.” The president—in this conception—exists on some astral plane that courts, and facts, cannot touch. It’s as if we’ve arrived at a point in the Mueller probe where all of federal law must be reduced to something a small child could color over a long car ride for Trump to be expected to understand it. This is a PR play that works only as long as we all accede to the central principle that this one man is above—or below—the law. That isn’t something the courts, or Bob Mueller, or Rudy Giuliani can adjudicate. It’s the thing we’ll at some point have to determine for ourselves.