When I started writing this blog in August of 2015, I never thought I would feel compelled to devote so many posts to Donald Trump. I have tried to devote most of the blog to legal and constitutional issues of interest and of consequence, without spending much time ranting about any one political candidate in ways unconnected to the broader themes of the blog. But as Trump seems to become inexplicably inevitable, one may wonder why I, and so many others, feel the need so often to point out his shortcomings as a potential president. After all, it seems, it has all been said before, and not enough people are listening, so why bother? There are, as I see it, three reasons.
First, moral imperative. One need look no further than Trump’s rhetoric at, and the stories we are seeing coming from, his campaign rallies to see that America is at a crossroads and that Donald Trump is the source of so much disorder and decay in this campaign and in our political life today. His words and his actions demand a public response. Years from now, when my children ask me if I did anything to stop Donald Trump, I want to say that I did something more than just not vote for him. Second, as a Republican, I feel a special obligation to speak out against Trump. If he becomes the Republican nominee, there will be a natural inclination among others to attach Trump to all Republicans, and them to him. Republicans therefore share a burden that Democrats and others do not – we have to speak out or people will simply assume that we support him, if for no other reason than that he is the Republican nominee. And third, as a lawyer with a special focus on many areas relevant to the Presidency, I feel I can sometimes identify specific issues in and problems with Trump’s campaign, and his potential presidency, that might be of special interest to readers – just as those with areas of expertise beyond mine may have thoughtful commentary on things that I might miss or ignore. In particular, as I have made clear here before, I strongly believe that the President must be a constitutionalist, and Trump is emphatically not a constitutionalist.
Last night’s scene in Chicago, and the earlier scene in St. Louis, were heartbreaking. But even more heartbreaking is that while others have roundly condemned violence at political campaign rallies – as any sensible person would do – Trump has as yet refused to do so, in a stunning failure of leadership. For a man who proclaims strength and leadership among his greatest attributes, he has shown remarkable weakness in the face of questions about violence by his supporters, alleged violence by his campaign manager, and the support of white supremacists. It does not matter whether the violence is perpetrated by protesters or his supporters. He should long ago have condemned it. His repeated failure to strongly and unequivocally condemn it – and worse, his seeming desire to create and stoke an atmosphere in which his supporters are led to believe that violence is appropriate – is only further evidence of his unfitness for the presidency.
The list of his provocations at these rallies is extensive and growing (see, e.g., here at LAT, here at Vox). Trump says he longs for the old days when you could beat people up for engaging in public protest (when was that, exactly?). He apparently believes that it is politically correct to not beat people up, and that the appropriate response is to be politically incorrect – which, apparently, means assaulting people who protest. As I have said before, Trump does not understand political correctness. Treating others with respect and civility has nothing to do with political correctness. Trump simply refuses, and seems to want his supporters to refuse, to be bound by social conventions of good order and civility when confronted with dissent.
None of this is meant as an affront to Trump’s voters generally. Though I disagree with their choice of candidate, many of them are likely good people, who are frustrated but care about the Nation, and have no desire to hurt anyone or see anyone else hurt. But they are supporting a candidate whose relationship to the forces of chaos, intolerance, and violence is dangerously close.
Mostly, Trump seems to despise the idea of restraint. He equates sensible restraint with weakness. Restraint, though, is what makes tolerable civil social order possible. Restraint is often a greater sign of strength than is violence, which should generally be reserved for instances of justifiable personal defense, war, or law enforcement, including as legally authorized punishment for serious crime. Restraint is what the law demands of people in a civilized society. And restraint is absolutely essential in an American president.
Contrary to Trump’s longing for some fictional world in which we permit unrestrained private violence, our society has never allowed anger to justify violence, nor have we ever allowed our people to say and do as they please without consequence merely because they are frustrated by their government.
One question I have seen asked is whether Trump could have any potential criminal responsibility for violence perpetrated by his supporters. The short answer is, possibly, yes – although it is unlikely he would face any prosecution, at least on the existing facts. I won’t get into the laws of each individual jurisdiction, and Trump travels all over the country. But generally, it is a crime to incite, encourage, command, or counsel another person to commit a crime, with the intent that the crime be committed. It is also generally a crime to aid, abet, or assist another person in the commission of a crime, and such assistance can include psychological encouragement of the crime. Under federal law specifically, it is a crime to travel in interstate commerce or use a facility in interstate commerce to aid or abet any person in inciting, participating in, or carrying on a riot, or committing any act of violence in furtherance of a riot, and to commit any other overt act in furtherance. 18 U.S.C. 2101. “Riot” is defined. 18 U.S.C. 2102(a). The First Amendment issues can be tricky, but not all speech – even pure speech – necessarily gets First Amendment protection, even where the speech occurs at a political rally. There are likely other potential criminal laws that might be relevant, but this is just a general sampling.
Now, the best defense of Trump on any of these grounds is to say that he has not specifically intended that anyone commit a crime, and that his own rhetoric, while provocative, has been only generalized but not specific as to any individual incident. But there can be no question that he has encouraged violence generally. And perhaps the most damning statement is his offer to pay the legal bills of anyone who engages in the violence he has encouraged. This seems to show consciousness of illegality. So while it is unlikely on the existing facts that Trump would ever be prosecuted, his conduct has at least created serious questions about whether he has crossed a line that separates protected speech from criminality.
Trump may now say he doesn’t want to see this violence and that he wants to bring people together. And Brutus is an honorable man.
Ronald Reagan’s 1984 campaign reminded us that, after a national rejuvenation during his first term, it was morning in America again. But the dark forces that seem to follow the Trump campaign everywhere it goes should make us wonder whether midnight has now descended upon us.