With Donald Trump’s criminal indictment in the New York hush-money case and with three yet-to-be-determined criminal cases — on Georgia election interference, the Jan. 6 insurrection, and the Mar-a-Lago government documents — Americans’ convictions about Trump’s criminal culpability are as polarized as ever. In the Carnegie Endowment for International Peace, Jennifer McCoy and Benjamin Press wrote that “pernicious polarization” threatens democracies by eroding “legislative compromise” and “institutional and behavioral norms.” Indeed.
News outlets have taken us to law school with experts who’ve shed much-needed legal light on how criminal conviction entails both committing a criminal act (actus reus — literally, guilty act) and possessing criminal intent (mens rea — literally, guilty mind). Proving intent beyond a reasonable doubt can be daunting.
Whether Trump possessed criminal intent features prominently in our polarization. Because we presume to know each other’s intentions in everyday life — we couldn’t make sense of our relationships if we didn’t — we may assume we know Trump’s intentions in his legal cases.
The problem is, we often enough make incorrect assumptions about the thoughts, beliefs, emotions, desires, intentions, and goals of people in our lives. Incorrect assumptions may erode our relationships, but they don’t typically entail legal consequences. So, while we’re free to make psychological messes of our relationships, in our legal system we’re rightly held to higher standards of proof.
Attaining such proof often necessitates reliance on the testimony of those who have witnessed defendants’ statements and acts, not least to determine whether they possessed criminal intent. The subpoenas served to Trump’s aides, lawyers, and former Vice President Mike Pence are high-profile examples.
Whether we suppose a person’s acts are caused by their internal tendencies (dispositions) or by their external circumstances (situations) has been studied by social psychologists in “attribution theory.” According to this theory, we’re prone to make the “fundamental attribution error” — attributing our own behavior to external situations and others’ behavior to their internal dispositions. After all, we’re more familiar with our own situations than those of others. Still, both attributions can’t be correct simultaneously.
Psychologists infer underlying personality traits by how consistently someone behaves in different situations. For example, if Andy is disagreeable with many people, we may fairly infer he has a disagreeable personality. But if he’s disagreeable only when with Joe, we assume that Joe, Andy’s situational context, contributes significantly to Andy’s disagreeable behavior.
That a behavior may be determined by both dispositions and circumstance doesn’t prevent ascertaining criminal intent in the courts accurately. That’s in part because upon reaching adulthood our freedom to select the situations we put ourselves in increases substantially. And we tend to select situations (including people) that help to maintain our pre-existing, internal dispositional tendencies. This is called “niche-picking.”
Think of it this way: Trump freely chose to run for president, knowing the scrutiny that choice entails. So, when he claims to be a victim of political circumstance, he makes a self-serving attributional error — that he did nothing wrong, that his legal woes are purely situational, caused by those who’ve been out for his head from the get-go. In his mind, it couldn’t be otherwise: In his first presidential rally, in Waco, he declared himself “the most innocent man in the history of our country.”
MAGA Republicans have tumbled to Trump’s disposition to attribute his predicaments to situational forces. By agreeing that he bears no responsibility for his alleged crimes — indeed, can bear no responsibility — they heighten the polarization that threatens democracy. They won’t accept anything less than Trump’s across-the-board exoneration in the courts, regardless of the evidence. Pertinent to political polarization, Salon cited a 2022 poll showing that slightly over “half of all Americans think democracy is toast.”
To preserve our democracy, we must combat the anti-democratic forces that would automatically absolve Trump and his collaborators of personal responsibility, placing them above the law. We must allow the courts to determine Trump’s intentions and culpability and accept their verdicts, including those pronounced on appeal. We must accept that people can and should be held responsible for their actions, regardless of their political status and whether we agree with them or not.
Not least, we must vote for candidates who take responsibility for their own actions, and who hold accountable those whose actions indicate intentions to subvert the rule of law on which democracy depends.
Barbara S. Held, Ph.D., is a Barry N. Wish Professor of Psychology and Social Studies Emerita at Bowdoin College.
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