Mens rea: It’s a legal concept you learn the first week of law school. Mens rea means, simply, criminal intent: the capability of forming the mental inclination to do wrong, as distinct from the act of doing wrong. Translated from the Latin, it means “a guilty mind,” and the idea, for our purposes, is that if one cannot formulate the mental intent behind the bad thing, it is hard to say you are fully culpable. Supreme Court Justice Oliver Wendell Holmes famously illustrated the concept of intent when he posited that “even a dog knows the difference between being stumbled over and being kicked.”
Donald Trump’s most ardent defenders are attempting to invoke this concept when they try to argue that he isn’t a racist when he says racist things. This week, when Trump referenced Minnesota Rep. Ilhan Omar and lied about her support of al-Qaida at one of his rallies, the crowd chanted, “Send her back. Send her back.” House Democrats warn, perhaps unnecessarily, that as a result of this race-baiting and fearmongering, her life is now in danger. But if it is, Donald Trump enthusiasts disagree that Trump had anything to do with this. They want us to know that he is not a nationalist bigot fomenting racism. They know this because they think he is either not capable of forming the intent to say the words he says or because he has good nonracist bones.
Witness born-again Donald Trump enthusiast Lindsey Graham, who asserted forcefully on Wednesday that Trump cannot possibly be a racist because he is too much of a narcissist: ”I really do believe that if you’re a Somali refugee who likes Trump, he’s not gonna say, ‘Go back to Somalia.’ A racist says, ‘Go back to Somalia’ because you’re Somali or Muslim or whatever. That’s just the way he is. It’s more narcissism than anything else.” In other words, Trump’s hate for four congresswomen of color is not because he hates them, or because he hates people of color, but because they hate him, and he hates anyone who hates him. Also, he’s too mentally incapacitated by his stunning need for approval to form an actual racist thought. (This is, again, a form of the insanity defense, being applied to the sitting president.)
Witness, too, the backup defense of Trump himself, who didn’t chant, but stood by while the bad chanters chanted. Sen. Thom Tillis, who attended the president’s rally Wednesday night, said, “A group of people chanted. He didn’t ask them to chant it. You can’t control that any more than you can control the reaction at a rock concert.” He added, during an appearance on Fox News Thursday morning, “Any time you get into a crowd like that and you’ve got a lot of supporters, they’re going to say what they want to say.” On Fox & Friends, apologists further emphasized that it was Trump’s supporters—not him—who initiated the chant. “On their own, yes, it was unsolicited,” Ainsley Earhardt said. Recall that Trump was describing Omar—and drawing out her foreign-sounding name—as an al-Qaida apologist when the crowd began chanting.
But even that assumed too much intentionality on the part of real people, so Trump defenders quickly settled on the new argument that it was neither Trump nor his chanting supporters who were racist, but the chants themselves that were the racists. At a Christian Science Monitor breakfast on Thursday, National Republican Congressional Committee Chairman Tom Emmer insisted there was “no place” for the “send her back” rhetoric, but also repeated the new article of faith that the president does not have a “racist bone” in his body. Others expressed a similar sentiment:
Bad stupid chants. Walking around chanting themselves! Someone should punish them for being free-range chants. It’s a good thing nobody had the intent to say racist stuff.
This leads to the next-level claims that even the chants weren’t to blame, because the chants didn’t mean what the words meant—they were simply a perfectly valid reaction that meant to say something else. Here is Sean Hannity saying—no, seriously—“I don’t think they were chanting, ‘Send her back’ so much as they’re saying, ‘These views are repugnant.’ ” Here are those views, hastily summarized:
The purpose here is just to establish that there can be no mens rea, no bad intent because the actual words that emanated from all of their mouths were not what we all heard them to be—they meant something else. Really, you can just choose your own ending.
On Thursday morning, Donald Trump himself claimed that the chants were bad, bad chants and pointed out that he didn’t endorse them, much less cause them, and even that he tried to stop them, though there was no evidence at all that he did anything of the sort. If you were willing to stick around for the recap, it goes something like this: The president didn’t mean to say the racist thing, the crowd said the racist thing, but also, the racist thing the crowd said was itself to blame, rather than being the crowd’s fault, and plus, the president tried valiantly to stop it. Imagine if your best defense at a trial for doing something bad was “I didn’t steal the can of Spaghettios, it stole itself while I tried to stop the can from being stolen. Plus, I don’t have a Spaghettios-stealing bone in my body.” The mere fact that a man who never walks back a thing walked back “send them back” is his tell: He knows he crossed a line.
It should go without saying that one does not have to intend to be racist to say and do racist things. But the fixation on absolving the president because he didn’t really mean it or didn’t know what would happen is particularly absurd, because we have been here before. After the Tree of Life mass shooting, I asked that we all stop trying to parse the president’s intention when he spews his hateful rhetoric. It is futile, as he continues to lie about what he has said and why he’s said it (perhaps because he does not know). I suggested that instead, we listen to what people believe they have heard. And here is what they have heard this time: Mitch McConnell says the president is “on to something” with his racist attacks on the congresswomen. Sen. Josh Hawley says, “It’s time we ended this cosmopolitan experiment and recovered the promise of our republic. Let’s start with this: America is not going to become the rest of the world, and the rest of the world is not going to become America.” White Supremacist Andrew Anglin wrote on his Daily Stormer site, “Man, President Trump’s Twitter account has been pure fire lately. This might be the funniest thing he’s ever tweeted. This is the kind of WHITE NATIONALISM we elected him for … And we’re obviously seeing it only because there’s another election coming up. But I’ll tell you, even knowing that, it still feels so good.” White supremacist Richard Spencer laments only that the racist tweets are not racist enough. Commenters on 8chan praised Trump’s words as an “essential first step” in normalizing the idea that individuals can choose not to exist alongside people they don’t like because of their skin color or where they come from. Violent white supremacists don’t need to listen for dog whistles because the president is saying it out loud. To paraphrase Andrew Gillum, I don’t much care if the president intends to be a racist. I care that millions of those who intend to be racists believe that he really, emphatically is one.
The president stirs up racial fury in his followers. He blames it on the targets themselves, the media, and the Democrats, but he is the one doing it. Now, whipping up racist crowds to chant racist things isn’t a crime (though threatening to send people “home” does, in fact, appear to violate federal anti-discrimination laws). But the point is that millions of people admire Trump when he says explicitly racist things. His polling numbers rise, as they did this week. Which is why, even though he wants to (occasionally) claim he didn’t mean to, Trump is dead set on egging them on. His supporters’ intentions have never been more clear. They want to engage in a war over race, immigration, and intolerance. And Donald Trump is not stumbling. He’s taking deliberate shots.
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