Like any Contract, an Election Should Require a “Meeting of the Minds”

Americans knew they were electing a witless and crass ogre to the highest office in the land in 2016. It was manifest in Donald Trump’s public conduct during the campaign.

He mocked a reporter with a disability. He denigrated the late John McCain’s military service record. He stereotyped all immigrants as rapists and criminals. He tried to incite violence at his rallies, offering to pay the legal fees of those who would break the law by assaulting protesters.

So the country knew it was electing an immoral and bigoted fan of unlawful violence, and someone reckless enough to shout “fire” in a theater if it served his purposes … with no regard for the consequences to others.

But did the electorate know everything it was entitled to know to make an informed decision? Here we find an arguable point.

There is a concept in American contract law known as the meeting of the minds, or consensus ad idem. It holds that a contract can only be valid if the parties entering into it understood its mutual legal obligations and intended to be bound by them.

Legally, this concept is completely inapplicable to the unfolding Trump fiasco. But it makes for an interesting framework to assess whether or not the American people should be bound by their political decision, and whether or not they knew what they were voting for will be the central question in any impeachment proceeding —even if it remains a subtextual signal lost in partisan noise.

The case which established consensus ad idem in American contract law was, ironically, and English case nicknamed Peerless. In the case, Mr. Wichelhaus entered into an agreement to receive 125 bales of cotton from Mr. Raffles, who was to deliver the cotton from India to England on a ship called Peerless.

It turned out there were two ships called Peerless bringing cotton from India — one arriving in October and the other in December. Wichelhaus was expecting to receive his cotton in October, but his shipment was aboard the other ship. When he learned of the mixup, he declined to wait the extra two months and backed out of the deal, leaving Raffles holding the bag.

Raffles sued Wichelhaus for breach of contract, but the court could not determine from the written document which Peerless the men had agreed would bring the cotton. Therefore, the court ruled, there was no meeting of the minds. No consensus ad idem. And therefore, no legally binding contract.

Americans and their representatives face a similar prospect at present. There are, it is increasingly apparent, two Donald Trumps.

One who was known to be oafish and even irresponsible, but elected nonetheless and even because of these tendencies.

The other Trump — the one now in office — was not known to those who elected him. This second Trump failed to divest foreign interests before the election which might create conflicts of interest for him while in office — a clear Constitutional violation. The other Trump concealed an extramarital affair with a porn star by paying her hush money, denying Americans the ability to judge his character accurately until after the election.

The other Trump knew he would use the power of his office to divide and antagonize the electorate with unlawful immigration directives, dangerous classified disclosures to Russian officials, and serial dishonesty. He has materially misled or outright lied in just about every way possible and on just about every subject. Trump undoubtedly knew this would be his method of governance, but did the people who voted for him understand just how much of a liar he would be?

If it turns out Trump was complicit in or had knowledge of efforts to tamper with the election that put him in office, he will truly have distinguished himself as a different candidate from the one people pulled the lever to elect. One assumes that even in the moral morass that is modern anarchist America, replete with self-obsession and nihilism, people would not have knowingly given power to a man willing to collude — or tolerate collusion on his behalf — with adversaries perverting our most basic civic processes.

If it turns out there was no meeting of the minds in the 2016 election because Americans did not know who they were voting for — not because they were inattentive or naive, but because they were actively deceived — then the contract should not be enforceable. It should be considered that no election actually occurred. Donald Trump should not be President unless he can be elected on the basis of a fair assessment of the facts of his candidacy.

Politically, this means he should have to stand for impeachment, a process which should occur if Congress still has enough basic functionality to conclude that the election lacked consensus ad idem.

If, after all we now know, Trump makes it through impeachment and remains in office, then none of this matters … because it means our system has failed and the grand experiment is over. If we’re unwilling to acknowledge a collective error and instead choose to cheer on our own demise, we deserve the inevitably dark fate which will befall us.

At that point, should it ever come, it will all be over but the pain of political entropy and the horror of eventual collapse.

Tony Carr is an American writer, manager, veteran, and strategist. He is a former combat pilot and squadron commander with an M.A. from George Washington University and a J.D. from Harvard Law School. Tony is the founder of The Colosseum Blog and writes from Manchester, United Kingdom.

Manager, traveller, lawyer, pilot, retired military officer, family man, and perpetual student engaged in random acts of expression.