Anatomy of a lie.

President Trump claims millions of people committed voter fraud. We’ve been told he plans to launch an investigation into this alleged fraud. Here’s what we know: this is false. There is no proof. No one has corroborated this investigation.

(Maybe I should say few people have corroborated; a golfer friend of President Trump’s is the origin of the claim.)

Under normal circumstances, this is a lie. Journalists understandably have to take a more cautionary approach. There’s risk in publishing something so strongly worded. For starters, it’s so concrete a statement and rooted as a factual allegation that it would trigger libel concerns. No worries in this specific situation because a defense to libel is truth and the bar for a public figure is malice, but it’s still part of a publication’s calculus.

Another hurdle is the integrity of reporting. There’s always the usual concern over due diligence and corroboration, but there’s the additional risk of political reporting where truth exists on a spectrum. By this I mean not every statement exists on a binary scale where we can measure its validity and determine in an absolute sense if something is exactly true or exactly false.

There’s virtually no argument over the falsity of this Trump’s claim. Rather, the hand-wringing that has occurred is the severity of language publications should use. The New York Times decided to use the word “lie.” NPR used “falsehood.” NPR justifies its use by way of the dictionary, which requires intent and, they argue, they cannot know what goes on in the president’s mind:

“A false statement made with intent to deceive,” Kelly says. “Intent being the key word there. Without the ability to peer into Donald Trump’s head, I can’t tell you what his intent was. I can tell you what he said and how that squares, or doesn’t, with facts.”

I disagree. Now, they’re journalists, and I’m a lawyer, so our problem-solving mechanisms are likely quite different. Plausible deniability is something with which us law-folk are quite familiar. Many people like to believe the law is read so literally that you can be vindicated under the most technical reading of the law.

Not so. People do not act literally; we do not bind ourselves to linear readings of behavior. We speak casually and we contort. Sometimes we act deliberately, but nonetheless rashly. The law captures this and, when determining liability or culpability, will frequently impute knowledge and intent. Thus the standard for “intent” is would a reasonably prudent person or should a reasonably prudent person have known X, where “X” is an act that would happen.

I think that should be the standard here. No, I’m not arguing for legal culpability or anything of that sort. I do want to argue that this is a useful framework, especially when writing about someone who is potentially very well-practiced in deception (“truthful hyperbole.”)

If President Trump did not already know that his claim was false, he should have known. This information is readily available. As president, he has ample resources at his disposal to uncover the truth. The bare minimum of due diligence on his part would have revealed that voter fraud is sparse, let alone rising to the threshold of millions of people.

Moreover, this standard can ramp up. A reasonable person – human buzzkill, the kind of person who always looks both ways, runs against traffic, and uses his blinkers – could have accomplished the above. President Trump is President of the United States. Our bar for the presidency is high regardless of our thoughts on the outcome of the election. No one would claim that idiocy is the standard by design, all joking aside. In a car accident, I would be held to the standard of a reasonably prudent person because I’m an average driving adult. A professional driver, in contrast, would be held to the standard of a reasonably prudent professional driver, complete with his or her entire sophisticated and practiced driving skill set. President Trump should be held to the standard of a reasonably prudent President.

Likewise, when it comes to public claims made to the American people and have shocking implications about the state and integrity of American democracy, the President is not held to the standard of the average twitter user. He should be held to the standard of the Commander and Chief of the United States – doubly so when he requires his press secretary, official representative of the White House, to evangelize these claims.

Finally, this is a pattern. Trump’s claims predate his inauguration. People, including presidents, make mistakes, speak quickly, and sometimes casually. Even if we were to be forgiving about the above standard and argue this was a passing comment, that is contravened by the fact that he has repeated this argument. There is no ambiguity in his intent to spread what is frankly disinformation.

I understand the hesitancy. A peril of political reporting is that politicians make spurious statements all the time. One also doesn’t want the potency of “lie” to be entirely loss. Tossing strong language around is a way to completely undermine the power of those words, and thus we want it reserved for the most egregious acts.

By way of contrast, President Trump’s claim that Mexico will pay for the wall is specious at best. The proposed 20% tariff will foreseeably land on the American consumer. However, it’s not false. Mexico will pay that tariff. We can argue that Mexico’s decision to pass that along to the consumer is independent and out of the hands of the administration, and that they’ve fulfilled their obligation by attempting to hold Mexico to account. It’s dubious and arguable, but it’s precisely because it occupies such a gray area that we need to provide some benefit of the doubt to politicians operating in an imperfect world with fallible human institutions.

That’s not the case here. The repetitious nature of President Trump’s claims, coupled with his utter lack of due diligence and failure to corroborate or otherwise provide some prima facie (face value) case for his claim has every indication that he knows he’s wrong. Even if he’s completely bubbled, he absolutely should know and it’s fair for publications to impute that intent on him for the aforementioned reasons – namely that he had ample opportunity and resource to uncover the veracity of his claim and either didn’t or chose to act contrary to it.

I’m frankly not sure of any other situation where “lie” might appropriately be used. Publications presumably think that the word is acceptable in some circumstances or else we wouldn’t be having this debate at all. The mind reader standard completely precludes this ever happening, though. Short of walking out on stage and prefacing his statement with “Okay, I’m going to lie now,” we’ll never know the inner motivations of President Trump or any other human beings. We do not possess the capacity to meet NPR’s hurdle.

To conclude, the Prudent President standard illustrates the level of disregard for proof that is palpable and within the realm of actual human faculties, and therefore this is one of those rare occasions where a judicious use of “lie” is wholly appropriate.

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