In criminal law, “scienter” involves knowledge and intention. Premeditated murder is more serious than involuntary homicide, for instance.
Against that background, I think Peggy Noonan put her finger on something that could become important in the prosecution of last Tuesday’s indictment of Donald Trump”
It is argued that the indictment goes, uncomfortably, at Mr. Trump’s thinking: Did he believe what he said about the stolen election, or was he lying? This speaks to intent. His defenders argue that he believed it, and that even if he didn’t, he’d still be operating under First Amendment protections …
The question of what Mr. Trump believed strikes me as beside the point. Based on long observation, he doesn’t “believe”; he’s not by nature a believer. His longtime method of operation is to deploy concepts and approaches strategically to see what works. Put another way, he makes something up, sticks with it if it flies, drops it if it doesn’t, and goes on to “believe” something else.
I’m not sure how that will play out in the hands of prosecutors, but it strikes me as astute and potentially an achilles heel for Trump.