Following the principle of interpretative charity, it is safe to say that Donald Trump's basic idea regarding the 2020 election is that his belief that the election was stolen is reasonable. This means that Trump is not like a bank robber, as Rep. Jamie Raskin of Maryland analogizes him to. Here's Raskin: "Let’s say you’re convinced that your bank has cheated you out of money, and your personal lawyer, the White House counsel, and the attorney general tell you that you’re wrong, and 60 federal and state courts tell you that the bank is right and that you’re wrong, but you still believe it. You’re just outraged. That does not give you a right to rob the bank or a defense in the event that you’re prosecuted for robbing the bank. In other words, Trump's mistake about what the law is cannot excuse his criminal conduct."

What's wrong with this analogy is partly that whereas you do not, for any reason whatsoever, have a right to rob a bank, you do have a right to petition the government for redress of grievances -- for example, when bad actors have apparently tried to steal an election from you or your allies. But I want to see if we can peel back some layers of the onion and maybe find out what prompts this analogy by Raskin, a former law professor.

He's surely not being disingenuous -- the principle of interpretative charity again. Well, possibly he's being disingenuous where he refers to Trump's "mistake about what the law is." In this part of the above-quoted passage, Raskin is confusing mistakenness about what the law requires or allows -- a matter of legal convention -- with a reasonable but mistaken belief that the election was stolen, which is epistemic (that is to say, knowledge-relevant) in character. Reasonableness has to do with justification, which along with knowledge is the main concern of epistemology. Raskin's point about the law applies to Trump, and his analogy about the bank robber is salient, only if Trump does not have a reasonable belief that the election was stolen -- a reasonable belief that, in principle, might or might not be mistaken. The proper analogy would be to the bank robber's belief about the bank cheating him out of his money: was it a reasonable belief? Even if it was reasonable, he still has no right to rob the bank, even if it is only for the amount of money the bank purportedly cheated him out of (a point that Raskin strangely failed to make). But if it was reasonable for him to think the bank cheated him out of his money, this would doubtlessly mitigate his punishment. The court would want to know precisely how he was mistaken in that belief before deciding on the punishment for robbing the bank, which everyone knows is against the law, and which cannot be, on analogy with Trump (in Raskin's telling), what the bank robber was mistaken about!

In law school, students learn that laws are based ultimately on public policy. Is this law conducive to a sound public policy? If not, revise it or abandon it. The public policy of strongly discouraging citizens from robbing banks is obviously sound -- where would we be if you could rob a bank whenever you needed cash? Similarly, the public policy of allowing citizens to petition the government for redress of grievances is very sound indeed, as essential to an ordered democratic republic.

The principle of interpretative charity leads to only one conclusion -- namely that, in the back of his mind, Raskin thinks not merely that it's reasonable to believe the election was not stolen but, much more strongly, that it's unreasonable to believe that the election was stolen.

There's a serious problem with that. It's question-begging.

On one side, you have Trump's apparent assumption that it's reasonable to believe that the election was stolen. On the other side, you have Raskin's clear assumption that it's unreasonable to believe that the election was stolen. One of these assumptions is question-begging, and the other one is not. Hmmm, that might be important for the charges being brought against Trump by Special Counsel Jack Smith and Fulton County District Attorney Fani Willis, don't you think? These two prosecutors, like Jamie Raskin, buy into the question-begging scenario.

Fortunately, there's an option available to them that is not question-begging. It happens to be the only non-question-begging option available to them. It's the perfect counterpart to Trump's position (namely, that it's reasonable to believe that the election was stolen). This is that it's reasonable to believe that the election was not stolen. No more than Trump's basic position is this contra-Trump position question-begging.

Unfortunately for Raskin and his fellow rascals Jack Smith and Fani Willis, this option makes it much harder -- nearly impossible, really -- to nail Trump on anything serious for which he might go to jail.

Both of the non-question-begging approaches make room for the possibility of having a mistaken belief about the 2020 election being stolen. They both allow for mistaken but reasonable beliefs. We often call these "honest mistakes," but that doesn't fully capture what they are about. The concept of a reasonable belief is needed to capture the idea of an honest mistake.

And that, in a fair trial, is where the debate will be properly joined. We will have Trump arguing that his reasonable belief that the election was stolen is not mistaken, and Jack and Fani arguing (in the only non-question-begging way they can) that Trump's belief, however reasonable, is indeed mistaken. Even though we do not know whether it is true that the election was stolen (mainly because the government didn't look with anything like due diligence or even basic integrity), we can still say it may not be true, or is not clearly true, that Trump lost the election -- and as a result, he cannot be fairly accused of trying to overturn the election. It makes no sense to accuse Trump of that, insofar as it's possible that Biden "overturned" the election by stealing it.

We can see this as clear as the light of day when we reject the question-begging position -- that it's unreasonable to believe the election was stolen -- and acknowledge the non-question-begging position -- that it's reasonable to believe that the election was not stolen.

The Rule of Law cannot embrace question-begging trial strategies or adjudication without destroying itself. If the Rule of Law means anything, it means that Trump must be allowed to meet his enemies in a fair contest in the courtroom, instead of having to confront a jury-rigged and blatantly question-begging exercise in Deep State wish fulfillment and navel-gazing.

Make the playing field epistemically even. Fairness and rationality alike require it.

Image: Fulton Superior Court