A performative contradiction is a statement whose effect goes against
its intended meaning. A canonical example is Donald Trump’s January 6th
tweet in which he insisted that he is a “very stable genius.”

Speaking last week about the President’s first physical exam in
office,
Ronny L. Jackson, the White House physician, stated that he “found no
reason whatsoever to think the President has any issues whatsoever with
his thought processes.” Trump had taken the Montreal Cognitive
Assessment
test for dementia and received a perfect score; the test typically takes ten
minutes and asks subjects, for example, to identify pictures of a lion,
camel, and rhinoceros; to state what a train and a bicycle have in
common; and to recite “The cat always hid under the couch when dogs were
in the room.” In the
Times,
Steven Buser—a former Air Force psychiatrist and a member of Duty to
Warn, a movement of mental-health professionals who believe that Trump
may be dangerously ill—wrote that he “certainly could not certify” Trump
as ready to work with nuclear weapons “without more extensive
psychological evaluation.” Buser and two other colleagues in Duty to
Warn also wrote in USA
Today that while Trump’s test score rules out full-blown dementia, it is
“entirely compatible with significant cognitive decline.”

Questioning Trump’s mental capacity nourishes fantasies of ousting him
from office via the Twenty-fifth
Amendment.
At the moment, it may seem the more likely route of removal, since the
other path—impeachment in the House and conviction in the Senate for
“treason, bribery, or other high crimes and misdemeanors”—seems like a
foreclosed possibility so long as Republicans control Congress. The
meaning of “high crimes and misdemeanors” for impeachment purposes is
famously underspecified, and is not synonymous with “crimes” for
purposes of ordinary criminal liability. (It is unlikely that a sitting
President can be criminally indicted in court.) But many people hold out
hope that, if the special counsel Robert Mueller’s investigation discloses a
federal crime, that revelation may spur Congress to impeach Trump
(though Congress need not wait for Mueller’s findings to do so).

There is a tension between these two paths. In the hypothetical scenario
in which Trump’s mental impairment warranted invoking the Twenty-fifth
Amendment, that same impairment might also render him incapable of
having criminal intent.

In situations of “diminished capacity,” which could mean an abnormality
such as dementia or a personality disorder, a person may be incapable of
forming a mens rea, or “guilty mind”—the intention and understanding
behind a crime. The federal case United States v. Brawner, from 1972,
recognized the “diminished capacity” defense, and other courts since
have also treated dementia, and even “mild cognitive impairment,” as
relevant to a person’s competence to plead guilty, such as
Alvarez-Jacinto v. United States, in 2010.

Mueller’s investigation likely focusses on obstruction of justice, which
demands proof of corrupt intent; in that case, the remarkable public
discourse around Trump’s mental unfitness would surely be helpful to the
President’s legal counsel. If there is reasonable doubt as to whether
Trump could have formed the mens rea to obstruct justice due to mental
disease, or if he appears mentally incompetent to be tried or to plead
guilty, then Congress may be even less willing to decide to impeach and
convict him for high crimes. And, of course, Congress cannot impeach on
grounds of mental incapacity.

This would not be the first time during the Trump Administration that
Democrats faced a Catch-22 related to mens rea. Recent criminal-justice-reform efforts have included proposals to add a default mens
rea element to all federal criminal statutes, which would require prosecutors to
prove a defendant’s criminal intent—his purpose or knowledge at the time
of the crime. Such proposals, which make convictions more difficult,
address concerns common among liberals about over-criminalization and
mass incarceration. But they also undermine enforcement of
environmental and white-collar
crime,
favoring Trump’s corporate allies and anti-regulatory agenda—a likely reason for the
Koch brothers’
support for such proposals.

It is altogether possible that Trump’s mental state is both one that is
capable of criminal intent and one shaky enough that our potential
nuclear annihilation should not depend on it. Trump may push against any
narrative of mental impairment, but I wouldn’t count out the possibility
that his lawyers will adopt one if it comes to that. Meanwhile,
mental-health professionals who are trying to convince the public of
Trump’s mental deterioration may be working at cross-purposes to the
goal of impeachment or eventual criminal conviction. Paradoxically,
fulfilling their “duty to warn” may be a step toward declaring the
President not guilty.