Monday, October 10, 2016

Trump's Asymmetrical Debate

by Michael Dorf

Because my teenage daughter needed a ride home from her friend's house where she was watching the second presidential debate and I was the designated driver, I experienced this one a little differently from how I experienced the first 2016 presidential debate and the vice-presidential debate--namely, sober. That was poor planning on my part, but it does leave me in a position to write down my instant reaction without the need to wait for my head to clear in the morning. After making a couple of observations about style, I'll focus on one substantive point: Trump's threat to appoint a special prosecutor to look into Clinton's emails, should he become president.

But first:

1) Both candidates interrupted each other but Trump interrupted more. He also whined about the moderators giving Clinton more time and ganging up on him. The latter complaints were groundless with one exception. At one point Martha Raddatz answered Trump's criticism of the Obama administration for telegraphing its plans in Mosul by offering reasons why this might make sense. Raddatz's response was sensible on the merits, but she shouldn't have offered a substantive rebuttal. Other than that, however, Trump's complaints probably came across as petulant. The interrupting cannot have played well, either. Mike Pence "won" the Vice Presidential debate because he appeared more cordial by interrupting Tim Kaine less frequently than Kaine interrupted him. The optics of a man interrupting a woman are even worse. Yet Trump went there. That was a stylistic goof.

2) Trump also appeared to menace Clinton by standing in back of her during one of her early answers. I don't know whether this was his intent, but this looked quite bad, especially given the recent . . . er . . . context. Also, there was more sniffling from Trump. Howard Dean's suggestion after the first debate that this might be the result of cocaine use by Trump was ridiculous, but the only reason he was even in a position to make the accusation was Trump's absurd denial of the fact that he was sniffling. It's a terribly minor thing, but a professionally run campaign would put out a statement like this: "During both debates, Donald Trump could be heard apparently sniffling. He is recovering from a mild cold." Or "that is simply his breathing pattern when on a microphone." But I guess they think that something like that would show weakness, so they simply denied the obvious fact that Trump was sniffling.

So much for style. There was much to chew on with regard to substance, but the moment that is understandably getting the most attention among people who care about law is Trump's statement that as president he would instruct his Attorney General to appoint a special prosecutor to (re)investigate Clinton's use of a private email server when Secretary of State and his follow-up interruption claiming that if he were president Clinton would be "in jail."

That line of attack was hardly unprecedented in this campaign. During the Republican National Convention, Trump-manservant/NJ-Governor Chris Christie gave an entire speech in the form of a plea to find Clinton "guilty" of various high crimes and misdemeanors. And "lock her up" has been a familiar refrain of the Trump faithful.

Nonetheless, it was jarring to hear a candidate for President directly threaten his chief rival with criminal prosecution. As a great many people have observed already, such threats do serious damage to our legal and political institutions. Trump should be roundly condemned for the threat.

We are left with a seeming puzzle, however. Why did he do it? After all, Clinton has already been investigated by the FBI, which found that her approach to her email was "extremely careless" but also that "no reasonable prosecutor" would think that criminal charges are warranted. It is no doubt a talking point on the right that James Comey is somehow a Clinton stooge. (Here's an example from Breitbart.) So maybe Trump really thinks that another investigation would yield a different result.

But even if so: 1) Trump will probably lose the election; and 2) Trump himself is potentially vulnerable to criminal prosecution for various of his shadier business dealings, especially the use of Trump Foundation funds to pay for Trump business expenses. If Trump really thinks it is appropriate for the winner of a presidential election to pursue a politically motivated prosecution against the loser, he ought to be more worried about his own fate. Why isn't he?

The answer is that Trump is engaged in asymmetrical warfare. Clinton's campaign plays hardball when it needs to, but they uphold the basic verities of representative government. That's why during the first debate Clinton answered unhesitatingly that she would accept defeat if that is the voters' decision. Trump said the same during that debate but then walked it back almost immediately thereafter, with his unsubstantiated claims about the election being "rigged" and what he "hears" about "certain areas in Pennsylvania." Samantha Bee's pointed critique of Trump's fear of "riggers" nicely exposes the hypocrisy in the claim, but it is not just hypocrisy. It is also opportunistic cynicism.

Trump's threat to destabilize fundamental democratic norms is rooted in the sort of cynicism deployed by terrorists who embed themselves in civilian populations from which they launch attacks on civilian populations of the enemy. They violate the humanitarian law of war norm against attacking civilians while simultaneously exploiting the fact that the enemy abides by that norm. Trump likewise threatens to abuse the prosecutorial power of the presidency should he win it, secure in the knowledge that Clinton would not do the same to him.

The framers of our Constitution, who studied the history of democracy, knew that democracy was vulnerable to devolving into authoritarianism. They structured elections for the presidency as indirect contests precisely so as to weed out demagogues and to ensure that people of virtue would rise to the top. But the rise of the plebiscitary presidency has left the system vulnerable to a would-be Caesar (or in Lewis Black's phrasing, an "Orange Julius Caesar"). The decline of the power of the parties qua parties in selecting presidential candidates has increased the vulnerability.  Even in the recent period, we have been lucky. Our presidents have not always been wholly virtuous, but, with the possible exception of Nixon, they have not been sociopaths seeking power simply to vindicate their egos.

Trump is thus a long-foreseen threat against which the original institutional brakes of our constitutional system no longer operate: A would-be tyrant who exploits the mechanisms of liberal democracy in order to trash those very mechanisms. His asymmetrical warfare will probably fail, but the fact that it has any chance of winning should be a sobering reminder that the fate of constitutional democracy ultimately rests only on the good sense of Us the People. I hope we have enough of it left.


Joe said...

Us the People?

We the People?

Shag from Brookline said...

Post-debate "locker room" talk on Trump's attempt to dismiss the recent tape on his claim of "locker room" talk:

"Celery Stalks at Midnight." a popular song from the 1930s, was on display as The Donald choreographed for the cameras to get into Hillary's frames when she was responding to questions. And once again the Donald displayed that he's a sniffer. Regarding The Donald's comments on that "locker room" tape, note that The Donald didn't have to actually grab Bush to get Billy's attention. [Note: There is a conspiracy theory that JEB orchestrated this ironic Bush-Whacking of the Donald, but today it's Billy who's out of "Today." We know what ailes [sick!] The Donald, and you can Roger that.

Brian C. said...

Joe, "…us the people" is correct usage; "us" is not the subject of the sentence as is the more common "We the people…"

Joseph Simmons said...

There was a moment where Trump was swatting his hand back-and-forth as he spoke, and with the split screen (on PBS) it happened to line up with Clinton's face so that it appeared as if he were slapping her repeatedly. Terrible optics - I laughed then and also when Trump declared himself a gentleman. Concerning the latter, I wanted so badly for Clinton to look into the camera when he said that. It was a total missed opportunity for her.

Joe said...

It's not merely "more common." It's in the Preamble of the Constitution. The sentence didn't say "us the people" -- it capitalized it. So, that's probably more notable.

It really seems a tad gravy for Clinton to "look into the camera" when Trump declares himself a gentleman. Even some Trump voters probably groaned there. So, "total missed opportunity" is a bit much. There is something to be said about letting him bury himself without any help, like letting a play occur on the field w/o over analyzing. You figure if she did that, someone would call her out for playing to the camera. She can't win there, really.

Joseph Simmons said...

No doubt Trump stepped on the rake, but Clinton should have poured the gravy on more than move on. She should have savored the moment, let it marinate for just a couple seconds. It would have created more of a connection between her and the audience (something she is historically not so good at). Instead she was the politician who goes on to her next point. It's 'fine' but not great.

Shag from Brookline said...

Here's my edit of the beginning of Joseph's first sentence of his 11:18 AM comment courtesy of post-debate "locker room" talk:

"No doubt the rake stepped on the rake, ..."

Shag from Brookline said...

More post-debate "locker room" talk:

After The Donald self-dismissed his bawdy talk as merely "locker room" talk, The Donald put on display his body language as he stalked, slithered and sniffed to draw the attention of TV viewers in an effort to detract from Hillary's responses to questions. Did Trump's Laurel & Hardy surrogates Chris Christie and Rudy Giuliani prep The Donald?

Joseph Simmons said...

Good word play, from a bygone era, Shag! ;)
I'm appreciating the slapstick references and now Laurel and Hardy.

John Q. Barrett said...

If Trump in fact has federal criminal law problems [does he?], then his threat last night to, as president, investigate/prosecute/jail HRC might have bought him some insurance; against this campaign history, a DOJ under President HRC next year will think extra-hard and hesitate more about seeking Trump's indictment, even if merited, because a factual predicate for a "what did you expect?/it's just political payback" media and trial argument is now on film and in the can.

Michael C. Dorf said...

John: That's an intriguing suggestion but if I'm wrong, I would reject your hypothesis using what Josh Marshall at TPM calls "Trump's Razor": The dumbest possible explanation for a Trump campaign maneuver is usually the correct one. Here that would be that Trump expects to win and so hasn't thought about the implications of what he's doing for if/when he loses.

Shag from Brookline said...

More post-debate "locker room" talk:

Trump;s campaign manager Kellyanne Conway came to her employer's defense on the "locker room" Trump Tapes by pointing out that she has been alone with the Donald many times during her employment and found The Donald to be a perfect gentleman, apparently making no improper advances towards her. Perhaps this failure was because of The Donald's "locker room" talk in the Trump Tapes when he said:

“You know I’m automatically attracted to beautiful ― I just start kissing them. It’s like a magnet,” he added. “Just kiss. I don’t even wait.”

Perhaps Kellyanne was not an "automatic."

Joe said...

someone needs a day off

Michael C. Dorf said...

Shag: The line from Conway reminds me of Herman Cain complaining that no one was talking about all of the women who didn't accuse him of sexual harassment.

t jones said...

Why is the focus on Trump's "offensive comments" rather than his admission of offensive conduct?

Michael said...

Why isn't the focus on Clintons ability to pardon herself if elected?