The Good Fight
David French on Abortion

David French on Abortion

Yascha Mounk and David French discuss the criminal case against Trump and the moral status of abortion.

David French is a columnist for The Atlantic and senior editor at The Dispatch. His books include Divided We Fall: America's Secession Threat and How to Restore Our Nation and The Rise of ISIS: A Threat We Can't Ignore. French received a Bronze Star for service during Operation Iraqi Freedom and, as an attorney, litigated cases surrounding issues of religious and personal liberties. He is a member of Persuasion's board of advisors.

In this week’s conversation, Yascha Mounk and David French discuss whether Donald Trump should be prosecuted for his actions on and before January 6th, 2021; the moral status of abortion; and why French, despite being a longstanding member of the pro-life movement, is not celebrating the demise of Roe v. Wade.

The transcript has been condensed and lightly edited for clarity.

Yascha Mounk: How has your view of Trump's character, or your view of the extent to which he was complicit in an assault on democracy on January 6th, changed in the last month?

David French: Nothing has changed about my assessment of his character. He’s exactly as low as I thought he was. But I have changed some in my assessment of his criminal liability—not his moral culpability, which was very clear from the beginning. From the beginning of the “Stop the Steal” effort, for example, culminating in the attack on the Capitol, the moral and political culpability of Trump was absolutely crystal clear. But what's immoral or politically dangerous is, of course, not always illegal. And I've been very focused on trying to draw out these distinctions. For some time, I've had the view that his primary legal jeopardy is not related to January 6th, as awful as January 6th was. His primary legal jeopardy is in Georgia, and with the Georgia grand jury that has been doing its work related to his efforts to turn the election in Georgia.

Mounk: What happened in Georgia, and why do you think there may be criminal liability for what Trump did?

French: In Georgia, there was an effort in which he intervened with the George Secretary of State to try to get the Secretary of State to (I’m quoting Trump here) “find 12,000 votes.” Well, that's bad enough, but he went further. He also not-so-subtly threatened criminal prosecution in the event that those votes weren't found. 

I'm going to quote from Trump's call that was recorded by Georgia Secretary of State Brad Raffensperger’s team. Keep in mind, this is a Trump word salad, but the meaning is pretty clear: “It is more illegal for you than it is for them because you know what they did and you're not reporting it.” In other words, Trump is saying it is more illegal for Raffensperger to not find these votes, than it was for the alleged illegal votes to be cast. He says, “That's a criminal offense. And you can't let that happen. That's a big risk to you and to Ryan, your lawyer. And that's a big risk. I'm notifying you that you're letting it happen. So look. All I want to do is this: I just want to find 11,780 votes, which is one more than we have because we won the state.”

To put this into perspective, imagine a small town sheriff is losing an election narrowly and goes to the county commissioner and says, “You need to find me the votes I need to win. Or you might find yourself arrested.” The sheriff would already be indicted.

Mounk: How much of this depends on mens rea, on intent? Morally speaking, this case is open and shut. But in terms of criminal liability, doesn't a lot depend on whether or not Trump thought that he was speaking truthfully? Let's hypothetically assume that there was in fact voter fraud in Georgia—obviously, I don't believe that there was—and that 100,000 votes were stolen, and Trump is saying, “Hey, I can tell that they stole those votes. If you don't do anything to counteract that, you end up being complicit in that. So, go in, find the votes—ensure that the outcome of the election is correct.” 

If he believed all of that, would that still be a criminal act? 

French: That's a really good question, and it's one I think that allows us to clarify what “mens rea” typically means. It isn't necessarily crawling into somebody's brain and divining what they truly actually thought in their deepest heart of hearts. It generally is a stand-in for “knew or should have known.” If somebody has no reasonable basis for believing what they're saying is true, and yet they're saying, “I believed it was true. You can't prosecute me,” a prosecutor is going to go to a jury and say, “He's offering that as a defense. But you can disregard that defense because of this evidence.” 

The January 6th commission was laying a careful predicate to show that Trump was fully informed that he had lost the election; he was fully informed of that. And so the idea that says, “Well, in spite of my own counsel, my own attorney general, my own advisers, telling me I lost, I really, truly believed that I won”—I mean, you can make that argument. But a jury is not required to credit it.

Mounk: Part of the core of being an authoritarian populist is the idea that you alone truly represent the people, which leads very easily to the conclusion that if you lose an election, that must be because of sabotage. So I am inclined to believe that Trump, despite all these people telling him the contrary, really did believe, in certain ways, that he won the election. But your response to that would be, “Well, would a reasonable person have believed that? He may nevertheless be criminally liable.”

French: What are you doing to prove intent? You're going to provide proof of the knowledge that the person had, what kind of knowledge was coming in—all of those inputs. That doesn't mean that the defendant is defenseless. If intent is an element of a crime, the defendant could say, “Well, in spite of all of these reasonable inputs telling me that the election wasn't stolen, I still believed it was.” That's going to be a jury question, involving the weighing of evidence. And in ordinary circumstances, if you have evidence of the kind that we have here—of the people around Trump telling Trump the truth—that's generally the kind of evidence that a prosecutor is very happy to take to a jury. 

What you're thinking is, “How can I prove the elements of this crime to a jury, with proof beyond a reasonable doubt?” The amount of information that Trump had incoming leaves him with the notion that he has to persuade the jury that he's just kind of utterly deranged. I'm not going to call it an insanity defense, because that’s a highly technical thing. But it's like a version of it—that he just is incapable of knowing better. It's a tough spot for a defendant, to basically have to convince the jury that he's just off his rocker, and especially so when you're the president of the United States, and when you're somebody like Trump, who has an incredible amount of pride in his own intellectual abilities.

If you want to tie this in Georgia-specific statute, there's a criminal solicitation statute that says “a person commits the offense of criminal solicitation to commit election fraud in the first degree, when, with the intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.” So what's the intent element here? The intent element is that I intend that you engage in conduct that would constitute a felony under this article. Georgia Code Section 21-2-566 prohibits willfully tampering “with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, electronic ballot marker or tabulating machine.” Trump’s trying to get them to tamper with the tabulation, so there is a straightforward, simple criminal case in Georgia and there has been for some time. I don't know if it'll happen. It's a big, big step for a local DA to prosecute a former president. But that was my long-standing belief with Georgia. 

On January 6th, I was skeptical of a criminal liability for Trump related to the riot. Whenever you're finding whether something is criminal, you're always asking which statutes apply. A lot of people raise seditious conspiracy. For example, indictments have been handed down against Proud Boys and others for seditious conspiracy. That's a generally a tough legal case to make, not because the statute doesn't seem to fit, but because it’s really overly broad and vague, which means that it's been narrowly construed by courts, and it actually hasn't been used very much. It’s a tough charge to make and to make stick, ironically enough, because the statute is just too broad. It implicates too much conduct that could be constitutionally protected. 

Mounk: Under that statute, every communist group in the country is guilty of sedition all of the time, and we would end up in a very repressive regime. Clearly, that's not what we want to do. You're saying that, actually, the basis for a federal indictment would have to be in a different law?

French: Right. Unless, of course, we get some clear evidence that ties him to those who have already been indicted for seditious conspiracy. We don't have that. Now, there is a different law. This is 18 U.S. Code § 2383. This is the rebellion or insurrection statute, and it says “whoever incites”—this is the key word—”sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 

Now, there's been a general consensus amongst a lot of First Amendment attorneys that Trump's speech to the crowd on January 6th might have come close to incitement. But it didn't really cross that line, in part because he tempered some of his statements with the admonition that people should march peacefully and patriotically. And that admonition kind of saves the rest of the speech, because politicians always say “fight” for this and that. For incitement to be unlawful, consistent with the First Amendment, what you have to have is intent and imminence. There are two cases, one called Brandenburg v. Ohio that dealt with a prosecution of a Klan leader. The court threw out the prosecution, even though the Klan leader engaged in a speech promising “revengeance” if the president continued to “suppress the white Caucasian race.” The Court held that speeches, even if they threaten violence or disorder, are protected by the First Amendment unless advocacy is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” In a later case called Hess v. Indiana, they shortened the test to say speech can't be prosecuted for incitement unless it's “intended to produce and likely to produce imminent disorder.” 

So you have an intentionality element and a likelihood element here. Now, the likelihood element is met: disorder wasn't just imminent, it happened. But intentionality is where it gets interesting. Trump says on December 19th, 2020, “Big protest in D.C. on January 6th. Be there, will be wild!” He then directs his supporters to march on the Capitol. Thanks to the most recent testimony from Cassidy Hutchison, we also now know that he knew that the crowd was armed and that they weren't a threat to him. Later on, he further inflames the crowd by tweeting that Mike Pence didn't have the courage to do what was necessary. So if I'm a prosecutor, I'm saying, “Sure, he said this ‘peacefully and patriotically’ stuff, but that was sort of ass-covering, so to speak. The core of it is that he invited the crowd to Washington, D.C. and he sent them to the Capitol, specifically, knowing they were armed. Does that mean that he intended to produce an imminent disorder? I'd feel comfortable taking that to a jury.

His defense would be that politicians say “fight” all the time. “I'm asking people to engage in normal, constitutionally protected activity. How on earth can you say I intended for this riot to occur?” The question is, can you convince a jury beyond a reasonable doubt? And so the answer to that would be, “You whipped this crowd into a frenzy of lies. You told them to come and promised that things would be wild. You knew they were armed, and you sent the armed mob to the Capitol. When the armed mob was at the Capitol, you specifically inflamed the crowd against Mike Pence.” You also have to look at the overall circumstances here. Rudy Giuliani says at this same event, “Let's have trial by combat.” 

Here's the overall picture: you have an angry crowd being whipped up into a violent frenzy. The President knows they're armed. He sends them straight to the Capitol. Again, the question isn't, “Does the President have no defenses?” The question is, “Is this a case you take to a jury?” And I would say that it is.

Mounk: We've talked about whether or not the former president of the United States is guilty and should be prosecuted. To lighten up the mood, I want to go to another completely uncontentious issue, which is the moral and legal status of abortion.

One of the things that it strikes me about my upbringing as a nonreligious person in Europe, and about my intellectual circles in the United States for the last 15 or so years, is that the pro-choice case is so fundamental an assumption that I have barely ever heard the pro-life case. I would love for you to state for me and for my listeners why we should have a deep moral concern about abortion, and why the law may get involved in regulating whether or not women are entitled to getting one.

French: It revolves around a very simple concept: that an unborn child is a human life. It is not the mother, it is not the father. It is a separate human being and quite entire—quite dependent on the mother, of course, and exclusively dependent on the mother prior to viability. But it is a separate human being and as a separate human being a just nation does, in fact, protect innocent life from intentional killing. The argument that an unborn child is a separate human being isn't just faith-based. From the moment of conception, you're talking about a human being that has separate DNA from the mother and the father; it's not a sperm, and it's not an egg. It's a separate human entity that has the same separate DNA from conception until birth and natural death. A separate human being should receive protection from the law and that status of being dependent on another does not deprive it of worth and value. A baby is not like a tumor or a toenail or another sort of extension of a person's body. It is a separate body—completely dependent, yes—but another human being. As another human being, why does it have no protection from intentional killing? That's the fundamental argument of the pro-life movement. It's not that women should have no rights over their bodies. It's just that science teaches us it is not, in fact, merely another part of the woman's body; it's a separate living human being.

Mounk: Here, I am torn in two different directions. If I look at a fetus that's five or six months old, and I look at pictures of that fetus, it's very easy to feel that it is, in fact, a different human being. It looks like a kind of little baby. There are complicated scientific arguments about whether or not it is capable of feeling pain at some particular stage of development, but it is clear that it is capable of doing so well before natural birth. When I look at what a fetus looks like at three weeks or four weeks, I'm starting to be torn in the other direction, which is to say that, yes, I recognize that it is potentially human life, I recognize that it has a unique set of DNA that will remain the same though its natural death, but it does present as a clump of cells. It does not appear to have brain functions. And so at that point, I see there is some moral value there, some reason for moral concern, but it appears to be a lot less than it would be a few months later. 

How do you differentiate between those two stages, what should we think about that development, and how does that play into the case for legal restrictions of abortions at those different stages of pregnancy?

French: We've known for years where most people are on abortion, and they share your instincts.

They're going to say, after that first trimester, the state should dramatically limit access to abortion. I don't think there's a real scientific reason you can point to 12 or 14 weeks, for example, because a 12 or 14 week old baby is not viable outside the womb. It's more of an instinctive reason. From where the baby is recognizable as a baby, a lot of moral instinct starts to lock in. What's the scientific basis for this sort of consensus, middle position? I don't know. What's the moral basis for it? Well, it just seems more like a baby then. A lot of the compromise position is really based a great deal on a particular sort of sentiment about the child more than it is a scientific understanding. 

Mounk: And it's not just the American public, it's also where the settled law is in virtually every continental European country—Germany, France, Sweden, and so on.

Let's investigate for a moment this question about when the fetus is human, because in some biological sense, it seems obvious to me that two or three weeks in, the fetus is in fact, human; that is, a human entity that has DNA. It can grow to be a full adult human. Biologically speaking, it is human. But I guess the question is, “Is it human in the relevant ways that normally give us moral consideration towards humans?”

Now, I think some of the arguments for why we shouldn't have moral concern for a fetus at six or seven months are bad, precisely by analogy to that question, because you might say, “Well, they can't fend for themselves!” Sure. But nor can a lot of adult humans who we nevertheless want to treat with consideration, right? “They're not capable of rationality.” Alright, so again, if you make that the criterion for how we treat human beings, then you're going to have to treat a number of mentally disabled people in extremely cruel ways. There seems to be a background set of assumptions that we want to treat human lives with consideration if they are capable of having feelings, of feeling pain, of having a set of interests and so on. And though this is a very complicated and fraught question, it doesn't seem to me to be obviously wrong to say that in those relevant senses, a fetus at three or four weeks is not human in the way that a fetus becomes human at five or six months.

French: I absolutely understand what you're saying, and I think that the pro-life position has always been—now, let me set aside “abolitionists,” an extreme group that is dividing the pro-life movement right now—that we completely understand that argument. In the democratic process, the people should have the ability to say, “No, we are going to vote to protect unborn life, in spite of that argument.”

If people say to me as a pro-lifer, “Well, if you believe ‘abortion is murder,’ then you should want to prosecute women.” Whoa, hold on. Murder is a very loaded term that implies a particular mens rea, a particular state of mind that, quite frankly, the vast, vast majority of people who are seeking abortions just don't have. There's long been an accommodation in the pro-life movement for that different state of mind. Therefore, it's just different. One of the reasons why the pro-life movement has historically been very adamantly opposed to prosecuting women for abortions is that there is an understanding that women who seek abortions do not have sort of the mens rea as a general view that says, “What I'm doing right now by getting an abortion is the same thing as that would be if I was killing a 14 month old.” There is an understanding of the large gulf that exists in the state of mind regarding an unborn child at different stages of development. And so I do think that that's where you've seen the pro-life movement say, “Okay, I totally understand where you're coming from on this argument. But that's why we treat abortion somewhat differently under the law than you treat, say, infanticide.”

Mounk: We have laid out the moral set of debates about the status of abortion. Now, what kind of legal treatment of abortion does all of that justify? 

Let's grant that we're at a point at which there is a human life which has significant interests of its own, whose importance we recognize at some level—perhaps some listeners will think that that's the case at five or six months; some listeners will think that's the case at six weeks; some listeners might think that is not the case at all. But let's grant it for the moment. 

Now you seem to have a clash of two sets of interests: the interest of a woman to have control over her own body, to be self-determined; and the interest of a fetus which is dependent on her for its survival. It appears that you have two very significant interests clashing with each other. The law deals with clashing interests all the time, but this clash in interests seems to be particularly stark. What does that imply to you for how we can recognize those legitimate interests and try to mediate within this really strong clash of legitimate interests?

French: This is not an argument that just started with Roe in 1973—America has had abortion laws for a very, very long time that were decided through the democratic process. And I think that the procedural answer to that is that those competing interests should be resolved through the democratic process. And the injury of Roe v. Wade was that it removed those interests from the democratic process. 

Then it becomes incumbent upon pro-life citizens to convince the public of a couple of things. One is that the unborn child in a mother's womb is a life of incalculable worth, and the woman who is carrying the child is a life of incalculable worth. Rather than pitting the interests of child and mom against each other, what healthy public policy should do is harmonize them as much as humanly possible. Now, public policy is not going to be able to solve everything. But we know why people get abortions, and one of the principal reasons is financial insecurity. That's something that public policy can do something about, along with, for example, private philanthropy. So a holistic pro-life movement knows that it cannot rest its argument solely by talking about the baby, because of the powerful and legitimate interests of the mother. That's why a holistic pro-life movement is not one that's just simply running around trying to develop evermore creative ways of punishing people who either provide or aid and abet in providing abortions, or evermore creative ways to limit travel out of the state. It needs to be pouring energy into creative ways to be supportive. I'm worried about the state of the “pro-life” right at the moment, because I think it's very focused on one piece of that puzzle, and not nearly as focused on the other.

The pro-life movement as a whole, I would say, runs the gamut from the “abolitionist” wing to those who would support bans on abortion, except in instances where the life and physical health of the mother were implicated, or cases of rape and incest. You’re grouping those people as “pro-life.” It's a majority in some states, but a third or so—maybe a little less or a little more, depending on your poll—of America. And that's the community I've been a part of for my entire life. I'm definitely not one of these abolitionists who would prosecute women and have no exceptions for life and physical health of the mother.

Now, the interesting thing is, Democrats often say, “Look, that's only a third of America. They're out of step.” And then they go ahead and advocate a position that an even lower percentage of Americans hold. A recent Harvard-Harris poll that said about 72% of Americans want to ban abortion by 15 weeks—some earlier, some a little later, but by 15 weeks that’s up to 72% of Americans. That means that the Democratic position, which is “a 15 week abortion ban is unacceptable,” is an even more minority position than the relatively doctrinaire pro-life position. 

This is what our abortion politics come down to, all of the time: one minority position has held one party and another minority position has held the other party. Then there's this much bigger consensus position that is held by neither party.

Mounk: Let's close this conversation out by you explaining why you weren't elated by the Supreme Court overturning Roe and Casey. You have been a member of the pro-life movement for a very long time; you seriously worry seriously about what you see as the moral wrong done by abortion in this country every day. 

Explain to us why the pro-life movement shouldn't be celebrating right now, what it's doing wrong, and perhaps what the right settlement for the United States on this issue would be?

French: I'm grateful that it's overturned, and I have real disquiet in my spirit about the nation in which it's being overturned. 

I think a great constitutional wrong has been righted by Dobbs reversing Roe and Casey. That, I am absolutely grateful for. It's sort of the “Now what?” part of this that I'm worried about, and I'm worried about it on a number of fronts. It's happening in an environment where, for the first time in 40 years in the United States of America, that culture of life is under measurable decay. If you go back to 1980-81, that was the peak of the abortion rate in the US. It went down through every presidency from Reagan through Obama. Pro-life, pro-choice—didn't matter. The abortion rate went down. Part of that was increased access to contraception. Part of that was a lot more people decided to have babies even when they were unplanned pregnancies; the percentage of unplanned pregnancies that were aborted went down pretty considerably. 

In 2017, it all changes. From 2017 to 2020, the abortion rate goes up—for the first presidency since Jimmy Carter, the Trump presidency saw the abortion rate go up. My primary concern is that abortions end, which is a concern that I hold above the law. Banning abortion does not end abortion. The last four years are deeply disquieting because they're the first time in 40 years that these trends reversed. The decision is coming down at a time when much of the right is really given over to performative, punitive legislation. We have legislatures that are trying to outdo themselves, and each other, in the way in which they are creatively punitive: the bounty hunting laws that we've seen passed in Oklahoma and Texas and, I believe, Idaho as well; and, moving outside of the abortion world, the way in which a lot of red state legislatures are trampling on First Amendment rights to try to stamp out wokeness. It's really landing in a position where the right seems to be so focused on punitive action rather than supportive legislation. That really worries me, because I think the more you circle the wagons around a punitive approach, the more you're going to lose the rest of the public. And we've tried that before—that was the state of the law before Roe, and abortion rates were higher then than they are now. I'm very concerned that there has been a cultural shift back towards abortion that occurred during the Trump presidency, and that the right itself is not ready to be properly, holistically pro-life.

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Podcast production by John T. Williams and Brendan Ruberry. Podcast cover image by Joe O’Shea.

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The Good Fight
The podcast that searches for the ideas, policies and strategies that can beat authoritarian populism.