By Chris Satullo

When the strongest theory in your legal quiver is named after a Seinfeld character, you might be in big trouble.

It was George Constanza, the bumbler played by Jason Alexander on the show, who spoke this timeless piece of phony wisdom: “Remember, it’s not a lie if you believe it.”

Props to MSNBC’s Ari Melber for coining the phrase “the Constanza Defense,” as pundits struggled, in their post-hearing confabs, to parse a metaphysical question: Did Donald Trump really believe the nonsense he was peddling about a stolen election and Mike Pence’s supposed power to declare him president – or was he was outright lying, saying something he knew to be false?

Which led me to shout at my TV: What part of pathological liar don’t you understand?

Mona Charen of The Bulwark got it exactly right in a commentary this week. Pondering whether Trump knew he was lying is, she said, what philosophers call a “category error.” In a wonderful phrase, she said that asking that about Trump is like “asking whether a Komodo dragon prefers smooth jazz or hiphop.” It is misunderstanding the nature of the beast; it is failing to grasp how the lizard brain works.

The central fact of Donald Trump has always been that he is an industrial-strength narcissist. For such people, the world exists only to serve their needs and desires. Thus, the “truth” to them is only what meets their needs in a given moment – but, as Charen points out, the key issue is “not what he knows, but what he has a responsibility to know.”

And Trump’s deepest need is to be seen – and flattered – as a “winner.” His horror of being regarded in the history books as a loser is the driving force behind all of this: the Ukraine betrayal, the Stop the Steal nonsense, the coup attempt, the incitement of the Jan. 6 riot, the willingness to see his own vice president hung from a gallows on the Capitol steps.

It’s not that he lusts after the power of the presidency, as most people who’ve sought it did.  Seeking power for power’s sake is Mitch McConnell’s jam, not Donald’s. If Trump had cared deeply about his power to do things, he wouldn’t have wielded it so ineptly (cf. Obamacare repeal).  

No, if we could have somehow assured him that, as an ex-president, he could still have the parts of the presidency he delighted in – the adoring crowds at rallies, the opportunities to grift and to hobnob with kindred authoritarians from other lands, the perks and the deference, and, most important, the label of “winner” – Stop the Steal and Jan. 6 never would have happened.

But a record-high 81 million voters could not, and would not, cater to his titanic ego. For us to be rid of him, he had to lose. And that was intolerable to the sorest loser ever to waddle across the American stage.

Charen, and others, have gotten it right: It really doesn’t matter whether, deep down in that lizard brain, Trump did or did not realize he was lying.

So the “Constanza defense” is, as a matter of criminal law, a thin reed. The countervailing doctrine of “willful blindness” holds that if someone should have known an act was illegal but showed no interest in finding out whether it was, then ignorance of the law is no defense. 

Now, in fairness, it must be noted that many criminal defense lawyers think the “willful blindness” doctrine is a crock and should not be heeded. But perhaps we can agree that a president of the United States should be held to a higher standard than the drug traffickers to whom the doctrine was originally applied.

Remember, here is what Trump, standing on the same Capitol steps where the Pence gallows were lately erected, once solemnly swore (with his hand on a book he’d clearly never read) to do: “Preserve, protect and defend the Constitution of the United States.” The Constitution, in Article 3, cites this as one of the president’s central duties: “Take care that the laws be faithfully executed.”

Clearly, having taken that oath and enjoyed the power and perks that come with it, Donald Trump willingly took on a higher duty than the average bear. He vowed to know precisely what the nation’s laws really say and to “take care” that they be obeyed.

Oath violated. Laws broken. Prosecution to follow. That, at least, is how things would go from here in a sane nation devoted to the rule of law.

But if you’re still hung up on the idea that, if Trump really was as delusional as your usual QAnon fan, it may be hard to prove the case against him, I have another word of great legal weight to share with you:

Reckless.

Having spent 40 years in journalism, I had many occasions to ponder that word because of its crucial role in libel law. Under the landmark Times v. Sullivan ruling, the U.S. Supreme Court ruled that a public figure seeking a libel judgment had to prove the media outlet acted with “actual malice,” a confusing legal phrasing that actually meant “gross recklessness.” The plaintiff had to show either that the outlet knew a statement was false – or (the more likely case) that it proceeded with “reckless disregard” for whether it was true or false.

Watching the three days of hearings – particularly Day 3 as Greg Jacob, Mike Pence’s staff counsel, described his maddening exchanges with Trump and coup-loving lawyer John Eastman – my mind kept returning to that phrase: reckless disregard.

What a perfect description of how Trump has been behaving since Nov. 3, 2020. Reckless disregard of whether his claims of election fraud were true. Reckless disregard for the judgment of the three-score courts that dismissed his wild claims. Reckless disregard for the rule of law and his oath of office. Reckless disregard for the wallets of the credulous supporters he duped with his grift. Reckless disregard for the safety of members of Congress, the Capitol and D.C. Metro police, and his own vice president. Reckless disregard for the stability of our political system and the very future of our democracy. 

Granted, libel is a civil matter, not a criminal one. But the libel principle of reckless disregard has its analog in criminal law: reckless endangerment.

Reckless endangerment is defined as putting someone at risk of serious injury by conduct that “deviates grossly” from what a reasonable person would do in the situation e.g. tossing rocks at moving traffic from an overpass, leaving a loaded gun out in the open near children.

For felony-level reckless endangerment, you have to do things that present a “genuine risk of death” to people while demonstrating a “depraved indifference to human life.”

Check. Check. And check.

Whether he was lying or deluded, Trump conspired in acts of sedition, incited a riot and recklessly endangered the lives of the late Capitol Police officer Brian Sicknick (who died of a stroke during the riot) and the late Capitol rioter Ashli Babbitt (who was shot), not to mention Mike Pence and Nancy Pelosi.

Prosecute this despicable loser and put him in jail for the rest of his sorry days.

—

Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia