This article first appeared on the Dorf on Law site.
Last Saturday, Donald Trump gave a speech in Gettysburg, Pennsylvania, that was billed as a major policy address in which he announced that after the election he would bring defamation lawsuits against each of the 11 women who have recently come forward to state that Trump made unwanted sexual advances against them.
Fittingly, the editors of The New York Times ran the story under the headline "Donald Trump Pledges to 'Heal Divisions' (and Sue His Accusers)."
By chance, that evening I saw a film about another instance of denial and litigation. The parallels inspire this column.
Denial dramatizes the lawsuit brought by Holocaust denier David Irving against historian Deborah Lipstadt for having called him an anti-Semitic and racist liar in her book on Holocaust denial. Because English libel law allows recovery in circumstances where U.S. law would not, Irving's suit went to trial.
The burden fell on Lipstadt and her lawyers to prove that Irving deliberately mischaracterized the historical record. In other words, they had to prove that (spoiler alert) the Holocaust in fact happened.
Denial is a fine film that deserves to be seen and discussed on its own merits. But here, I want to use it as a launchpad for a discussion of Trump.
At one point in the film, after Irving has been exposed on the witness stand as a racist (by Lipstadt's lawyer reading from a part of Irving's diary in which he recounts a racist and anti-Semitic ditty he taught his young daughter), Irving is speaking to the press, denying that he is a racist.
As evidence, he offers the fact that among his personal house staff are black and brown women, even noting that he finds the women's breasts attractive. The scene was a kind of mirror image of Trump's explanation that he couldn't have sexually assaulted those of his female accusers whom he claimed were unattractive.
It was also striking in its relevance to Trump because, as portrayed in the film, Irving appears to be completely unaware of the fact that he has said anything even eyebrow-raising.
That scene resonates with another. During the closing argument of Lipstadt's lawyer, the judge interrupts to ask a question that suggests an arresting line of defense. He inquires whether Irving's anti-Semitism could actually work on his behalf.
In order for Lipstadt to prevail, she had to prove the truth of her claim that Irving lied about the Holocaust. Her lawyer argued that one could not attribute all of the false statements in Irving's books to mere sloppiness because they all point in the same direction: to exonerate Hitler.
But the judge asked whether these might not be "honest" mistakes, suggesting that because Irving was genuinely anti-Semitic he could have made his errors innocently, given his beliefs.
In the end, the judge rejects the argument, but it is worth pausing for a moment over the George Costanza–esque "it's not a lie if you believe it" because it may explain what is otherwise a deep puzzle.
What could Trump possibly be thinking when he doesn't merely deny that he is a racist or a sexist but boasts that nobody is less racist than he or has greater respect for women?
Part of the answer is that this is simply how Trump talks. He does not have merely good people working for him. They're "the best." He does not merely promise more jobs but "tremendous jobs." And so when Trump denies that he is a racist and a sexist, he naturally does so in the most extreme way possible.
But Trump's penchant for hyperbole is not a complete explanation. There is also the lying. If a normal person were going to deny something he knew to be true, he might be careful to deny it cagily. Not Trump. He goes all in. Why?
So long as I'm discussing the Holocaust, I should address the possibility that Trump is executing Hitler's "big lie" strategy: If you tell a big enough lie and tell it frequently enough, people will believe it.
I think that the big lie strategy is indeed partly at work in the Trump campaign, but so much of Trump's lying is unstrategic and even counterproductive—at least if his goal is to persuade undecided voters. Trump forcefully denies having said things that he is clearly recorded having said.
Accordingly, the big-lie strategy can only account for some of Trump's lying. What accounts for the rest?
One possibility is that Trump is simply a pathological liar. When he hears something that challenges his ego or his goals, he says something to contradict it. Or he lies purposelessly.
There is controversy among psychiatrists over whether pathological lying is itself a disorder or a symptom of other disorders, but in any event, it is a sufficiently encompassing diagnosis to be unhelpful in understanding Trump's motivation.
Saying Trump is a pathological liar does not explain anything; it simply restates the facts. If Iago exhibits "motiveless malignity," as Coleridge famously wrote in his copy of Shakespeare's Othello, then Trump as pathological liar displays "motiveless mendacity."
Accordingly, I want to explore the Costanza possibility. Might Trump actually believe he isn't a racist or sexist? Might he believe that he didn't sexually assault various women over the years?
That answer could be consistent with being a pathological liar. Some pathological liars don't realize they are lying.
Yet this answer seems at best only partial. The Trump denials lack credibility because of Trump's boast to Billy Bush about engaging in the very behavior that the women who have come forth allege. If Trump were unaware of or had forgotten that he routinely engages in sexual assault, he would not likely speak about it. So what gives?
By circling back to Holocaust denial, I believe we can gain insight into the mind of Trump. Holocaust deniers are typically anti-Semitic. They are popular among neo-Nazis. That looks like a contradiction. One would think that virulent anti-Semites and neo-Nazis would be proud of the Holocaust, not seek to deny it.
We must therefore understand Holocaust denial as not simply a historical claim but as a normative claim: In denying the Holocaust, they also mean to say that the Holocaust was not in fact a great evil.
Indeed, Denial includes a portrayal of David Irving speaking to an anti-Semitic crowd and saying that he finds the Holocaust "boring," even as he adds, in proto-Trumpian fashion, that saying so is not "politically correct." To profess to be bored by the Holocaust is to say that it is not an important historical evil. To borrow a term from a 1992 article by professor Sherry F. Colb, Holocaust denial is a form of Holocaust devaluation.
A similar phenomenon can be seen in the typical pre-rape-shield-law-era rape trial. The accused rapist denies that he forced the alleged victim to have sex with him, but meanwhile, the defendant's lawyer slut-shames the accuser, sending the unmistakable message to the jury that what happened to her was not a harm at all because she either wanted it or deserved it.
Denial of the factual charge of rape is logically consistent with condemnation of rape when it occurs, but the practice of denial frequently works to minimize the harm of rape instead.
Against this backdrop, we can see Trump's dismissal of the Access Hollywood recording as mere "locker room talk" in a different light. At one level, he was saying that it was "just talk" as opposed to action. But that's not all Trump was saying, and it wasn't even most of what he was saying.
Recall that in the second presidential debate, Trump only denied actually doing the things he boasted about to Billy Bush after repeated efforts by Anderson Cooper to pin him down. If Trump's chief goal were to distinguish between words and deeds, he would have made that point immediately and unequivocally.
Thus, there is an alternative account of what Trump was saying. By calling his confession mere "locker room talk," Trump was playing out the Holocaust denial and rape-defendant's-slut-shaming lawyer's dual move. He was saying "it didn't happen," but what he meant was "it wasn't so bad."
Meanwhile, Trump's threat to sue is almost surely empty. In an interview with a Miami CBS affiliate on Monday, Trump said that he would like to see the U.S. move toward the English approach to defamation.
But this is not England. For a public figure like Trump to prevail in a libel suit filed in the U.S., he would have the burden of proving that his accusers recklessly disregarded the truth.
However, the point of Trump's threat is not to carry it out. Threatening to sue his accusers is Trump's way of showing how adamantly he denies their allegations. And if I'm right that the denial is itself a form of minimization of the conduct, then the adamance of his denial is likewise a way for him to minimize the wrongfulness of his conduct adamantly as well.
I suspect that Trump's followers understand his dual meaning—much in the way that neo-Nazis understand the dual meaning of Holocaust denial. It's long past time for the rest of us to catch on as well.