Is Donald Trump Responsible for His Bad Behavior?

Mary Trump, a clinical psychologist, confirms in her book Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man (Simon & Schuster, 2020) what many other psychologists and non-psychologists alike have concluded over the past three and a half years: Donald Trump is a psychopath.

Trump amply exhibits nineteen of the twenty attributes in Dr. Robert Hare’s psychopathy checklist (PCL-R): glib and superficial charm, grandiose self-worth, need for stimulation or proneness to boredom, pathological lying, conning and manipulativeness, lack of remorse or guilt, shallow affect, callousness and lack of empathy, parasitic lifestyle, poor behavioral controls, promiscuous sexual behavior, early behavior problems, lack of realistic, long-term goals, impulsivity, irresponsibility, failure to accept responsibility for own actions, many short-term marital relationships, juvenile delinquency, and criminal versatility.

This popular diagnosis, if correct, raises two difficult questions. First, is it fair to hold Trump morally responsible — that is, to blame him — for his bad behavior? Second, if Trump has committed any crimes, is it fair to hold him criminally responsible?

To be sure, most Democrats and Never Trumpers want to “pay him back” for all of his lying, hate speech, corruption, authoritarian tactics, and reckless contributions to such harms as the spread of COVID, a sinking economy, hate crimes, rogue law enforcement, and general anxiety. But merely wanting retribution does not mean that retribution is actually warranted.

This is precisely the reason why most states, the federal government, and the military provide for an insanity defense. While different jurisdictions have adopted different versions of the insanity defense, they all share in common two elements: (1) the defendant must have been suffering from a severe mental illness or disability at the time of the crime; and (2) as a result of this mental illness or disability, he did not understand that his criminal act was wrong. (Some jurisdictions interpret “wrong” to mean immoral, others to mean illegal.)

If Trump were to be prosecuted for any of his alleged crimes (for example, conspiracy to violate campaign finance laws, obstruction of justice, tax fraud, money laundering, etc.) and plead insanity on the basis of his psychopathy, he would have to show both that psychopathy is a mental illness and that, as a result of this mental illness, he didn’t know that his criminal acts were wrong in the relevant sense.

Both points are questionable. First, while psychopathy overlaps significantly with Anti-Social Personality Disorder, which is included in the DSM-V, psychopathy itself may not be a mental illness. Instead, it may be the case that psychopaths and non-psychopaths differ only in character, not necessarily in degree of mental health or competence.

Second, is it even possible that Trump has believed all of his alleged criminal acts to be both morally and legally permissible? This suggestion certainly seems implausible when it comes to Trump’s understanding of what acts constitute crimes and what happens to criminals when they are caught. But it is slightly more plausible when we speculate about Trump’s moral knowledge. What is obviously wrong to non-psychopaths is not always obviously wrong to psychopaths. They may know that society generally disapproves of certain attitudes and behaviors, but they may also think that society is wrong.

In the end, the idea of treating psychopathy as a version of insanity will strike many as fundamentally misguided. Far from treating it as an exculpatory or mitigating factor, they would prefer to treat it as just the opposite: an aggravating factor. On this view, psychopathy is nothing more than a euphemism for evil character. A psychopath is not mad (insane, crazy, sick); he is bad. And any attempt to reduce his badness to madness unfairly absolves him. We would not “psychologize away” the average murderer’s or rapist’s state of mind, so why would we cut psychopaths this slack?

Fair point. But this can’t be the end of the story because there are still two big questions left unresolved: Why is Trump a psychopath in the first place? And is this cause itself mitigating or exculpatory?

In her book, Mary Trump details the brutality of Trump’s upbringing and thereby lends support to the inference that Trump’s parents made him into a psychopath. Had Trump been brought up properly, he might very well be a very different person today — kind, honest, diligent. But through a combination of emotional abuse, neglect, and indoctrination, Trump’s parents effectively destroyed his “normative competence” — that is, his ability to understand and apply moral reasons. So if anybody is to blame for his bad behavior, it is not Trump himself — he really could not have done otherwise; it is his parents. But they are both dead and therefore beyond accountability.

I suspect that all but Trump’s base will scoff at this application of the “abuse excuse” to Trump. (One such scoffer might ironically be Alan Dershowitz, who repudiates all versions of this plea in his 1994 book The Abuse Excuse: And Other Cop-outs, Sob Stories, and Evasions of Responsibility.) Yes, maybe Trump had a rough childhood, but so have many other children who turned out to be decent adults. Trump, then, must have freely chosen to be a psychopath. And for both this free choice and his resulting bad behavior, he is responsible and must be held responsible.

This conclusion is no doubt appealing. But the reader should keep in mind that this retributive sentiment, this desire to give Trump what he deserves, is the very same kind of sentiment that continues to fuel mass incarceration and an overly punitive, inhumane criminal justice system. So if we wish to correct these problems, we will have to think very hard about whether these reforms should include white collar criminals, including the rich and powerful.

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Ken Levy is the Holt B. Harrison Professor of Law at the Paul M. Hebert Law Center, Louisiana State University.

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