By Hal Brown, MSW, Retired psychotherapist
It should be becoming clear to Trump's lawyers that the First Amendment defense just won't fly. This seems to leave him with two viable defenses.
Consider this from
Not just the coup: Trump used the "aspirational" defense in the E. Jean Carroll rape lawsuit by Amanda Marcotte
There was no conspiracy to overturn the government. Trump is just a delusional old man babbling at people! And empty chatter ain't no crime!
Trump himself is leaning hard into the argument that he's too big of an imbecile to take seriously as a threat.
There are two words above, delusional and imbecile, which alone or together can be used and indeed have been used successfully to keep people either from being tried for a crime or on being convicted from being sent to a regular prison.
This has to do with laws about competency to stand trial:
It is a denial of due process to try or sentence a defendant who is “insane” or incompetent to stand trial.1 When it becomes evident during the trial that a defendant is or has become “insane” or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.2Although there is no constitutional requirement that the state assume the burden of proving a defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process
The term imbecile was once used to denote a category of people with moderate to severe intellectual disability as well as a type of criminal. The meaning was further refined into mental and moral imbecility. (Wikipedia)
We all remember stories like "Tensions escalate after Tillerson calls Trump ‘moron’" from 2017 using another old medical term now slang for to insult someone either with low intelligence or who may be smart but who does something stupid.
Trump's bet is to avoid being tried at all with the claim that he's too incompetent to particpate in his own defense. If found guilty of felonies and sentenced to incarceration The Federal Bureau of Prisons can accommodate him and provide apropriate treatment and programs:
This Program Statement provides policy, procedures, standards, and guidelines for the delivery of mental health services to inmates with mental illness in all Federal Bureau of Prisons (Bureau) correctional facilities.
For the purpose of this Program Statement, mental illness is defined as in the most current Diagnostic and Statistical Manual of Mental Disorders:
“A mental disorder is a syndrome characterized by clinical significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities.”
Classification of an inmate as seriously mentally ill requires consideration of his/her diagnoses; the severity and duration of his/her symptoms; the degree of functional impairment associated with the illness; and his/her treatment history and current treatment needs. Mental illnesses not listed below may be classified as seriously mentally ill on a case-by-case basis if they result in significant functional impairment. Reference.
Trump could go down in history as the most famous felon who ever served his time in a prison psychiatric hosptial. He'd be on the list with John Hinkley (who tried to assassinate Presdient Reagan and spent 34 years as a prisoner being treated at St. Elizabeth's Psychiatric Hospital) and Boston Strangler Alberto DeSalvo who spend years in the DOC psychiatric facility Bridgewater State Hospital before he escaped and was sent to the maximum secutiry Walpole Prison.
Recommended reading for Trump if this happens to him: