Jack Smith's impossible task

Trump lied. He acted corruptly. He conspired to deprive the government of its rightful function.

All of these claims in Jack Smith's new indictment depend on it being unreasonable to believe that the 2020 election was stolen. If, on the contrary, it's reasonable to believe that the election was stolen, then it's question-begging — it's assuming what must be proved — to claim that Trump lied about the election, and acted corruptly, and conspired to impede a key constitutional function of government. For obviously, if it's reasonable to believe that the election was stolen, a responsible politician will attempt to find out whether the election was legitimate before giving up his office to a potential election thief.

In that sense, at least prior to January 6, Biden can be presumed to not be a potential election thief only if it's unreasonable to believe that the election was stolen. Is it in fact unreasonable? Well, that's what the court must decide. The court must decide between that extreme belief and the contrasting comparatively moderate belief that it's reasonable to believe that the election was stolen. Trump's lawyers will insist that the court address this fundamental issue, which is necessarily raised by the indictment itself, albeit implicitly, in its conceptual interstices. The court can't rightly avoid addressing the issue.

Can the court peremptorily say, "The election wasn't stolen. End of subject"? Hardly! That would be stupefying begging of the question. Courts don't get to employ logical fallacies by stipulating them. (Ideally, they don't employ logical fallacies at all.) It's a logical fallacy to assume what must be proved, which in this case is whether it is reasonable to believe that the election was stolen. Everything else in the case proceeds from that. This is, so to speak, in the nature of the case. It goes with the territory.

If it were, by contrast, unreasonable to believe that the election was stolen, then Merrick Garland's prosecutors could perhaps nail Trump on the grounds that he should have known better than to do the things he did following the election, such as acting "corruptly," "conspiring" to interfere with a government proceeding, and so on. But obviously, he can't have known better than to act on the basis of a reasonable belief — much less under the circumstances of a nearing deadline (the January 6 certification by Congress, as per the Constitution's balance of powers framework — no mere formality). Trump can't do what no one in the history of the world, or any possible world, can do. Even Martians must act on the basis of their reasonable beliefs; hopefully they aren't prosecuted for it. (One dreads to think what a Martian Jack Smith would look like.)

The point is, we frequently do not know, in the sense of having knowledge (or justified true belief, in philosophical terminology), whether one side or the other of a conflicted or controversial state of affairs is true. Specifically, we do not know whether it is true that the election was stolen. We are therefore forced to act on the basis of what we are justified in believing. Clearly, this applies as much in the courtroom as in everyday life.

Now, a reasonable belief is a pretty good proxy for a justified belief, and an unreasonable belief for a unjustified belief. There may be complicating factors familiar to philosophers, but this is the general situation. You can immediately see how that helps Trump.

Since the government bears the burden of proof in a prosecution anyway, but more importantly because logic demands it in this kind of case, Jack Smith and his team must show that Trump was acting on the basis of an unreasonable belief that the election was stolen. It may indeed be reasonable to believe the election was not stolen — even Trump, wearing his thinking cap, might admit as much while insisting that such a belief, however reasonable, is mistaken — but Jack Smith can't rely on that, and even if he could, it wouldn't do him much good. For it implies that there may be a contrasting reasonable belief that the election was stolen, which Trump could of course assert on his behalf.

What the suddenly hapless-seeming prosecutors must prove — not beyond a reasonable doubt, but straightforwardly, in ordinary non-legalistic rationality — is that it is unreasonable to believe the election was stolen. Logically, they must do this before they can even begin to make any salient points in the courtroom about Trump's culpability. So, front and center in a fair and non-question-begging trial will be the question: is it reasonable to believe the 2020 election was stolen, and why or why not?
If the glove (of unreasonableness) don't fit, the jurors must acquit. Jack Smith doesn't get to assume, and make the jurors assume, that it's unreasonable to believe that the election was stolen. That's an extreme view, and he must prove it. (Beware, Jack: appealing to authority, which you will be sorely tempted to do, is another logical fallacy.)

None of this, by the way, is about what is often called "the fact of reasonable disagreement" (or the fact of reasonable pluralism, in John Rawls's phrase). Reasonable moral disagreement involves conflicts of values. Reasonableness of belief, inherent in this trial, is not centrally a matter of values and value conflicts, but rather a matter of epistemology. Epistemology — the theory of knowledge — is about justification and truth. Ideally, these two things are joined at the hip. But sometimes we have one without the other (the "Gettier problem"). The relevance of this to the present controversy and the tribulations of Donald Trump is that, in this case, we can't have the truth of the matter, mainly because the government, including judges, didn't seriously investigate the election, as Trump wanted them to do. So truth — that is, the truth of the matter about the election: was it stolen or not stolen? — is forced to drop out of the political and legal equation. Justifiedness — reasonableness of belief — is all that matters.

Jack Smith is in the unenviable position of having to prove that it is unreasonable to believe that the election was stolen. "Unenviable" is putting it mildly. If I'm not mistaken, Smith's new indictment has, in effect, given Trump a "get out of jail free" card. More than that, it will give Trump a chance to show the world that the 2020 election was — not to put too fine a point on it — dubious.

A prediction: History will give Jack Smith the nickname "Unlucky Jack." And the moral of the story? It's twofold. First, beware of the insularity of your tribe. And second, if you would slay a king, be sure to kill him.