GELFAND’S WORLD - A few weeks ago, I called on the government to build a jail for ex-presidents and such other high officials as would need to be protected from the normal conditions of incarceration. The idea was to cut through the argument that goes like this: "You can't jail Donald Trump because he has Secret Service protection, and they would never allow this to happen." There are various counterarguments to that claim, among them the simple retort, "Well Yes we Can."
In any case, Trump is getting perilously close to a real world test of this argument. The worst case so far is Trump's retweet of the following remark:
“MY FANTASY ... I WOULD LIKE TO SEE LITITIA JAMES AND JUDGE ENGORON PLACED UNDER CITIZENS ARREST FOR BLATANT ELECTION INTERFERENCE AND HARASSMENT”
Apparently, this use of all-Caps is common in that environment.
But aside from the spelling errors and invention of the crime of ELECTION INTERFERENCE as something susceptible of arrest, we should take note of a couple of things. The first is that the Tweet calls for an act of violence against both a judge and an elected official, namely the Attorney General of the state of New York. There is an argument that Trump should have considerable latitude in his public statements, being that he is the leading candidate in one major party for the office of president.
But there is a counterargument that needs to be made a little more vigorously by the pundit class. It is widely recognized -- obvious, really -- that Trump's statements have more force on his followers than those of ordinary mortals. Thousands of them marched on the Capitol on January 6, 2021, and a sizable portion engaged in acts of violent breaking and entering, assault on police officers, and destruction of property. Some of his followers think that he is all that is standing between the United States and the takeover by heinous forces, and at least a few treat him as God's pick to lead us out of darkness.
Yes, it's weird to the rest of us, but that's the way it is.
So, when Donald Trump asks for an act of violent law breaking to be carried out against two New York State officials, it should be treated more seriously than the comparable statements of his followers. One legalistic question is immediately raised by this: Can Donald Trump's ordinary First Amendment rights be limited simply because he is persuasive to part of our population? I think the answer is Yes, and for a couple of reasons.
The first goes to the idea of incitement to riot. There have been plenty of people who have tried to provoke mass uprisings but failed simply because nobody took them seriously. I saw quite a few of them in the days of the anti-Viet-Nam-War demonstrations. Some people lack the ability to demagogue effectively.
The other argument goes to Trump's status as a criminal defendant. As the judges and prosecutors keep reminding us, Trump (along with numerous other defendants in the Georgia case) remains free on condition that he obeys certain rules and restrictions. The same holds true in the D.C. federal case and in a criminal case brought by the state of New York. The most clear and obvious of these restrictions is that Trump not attempt to intimidate any witness or any other defendant.
In the New York civil case, the judge has made clear that Trump is not to attempt to intimidate his court staff or the opposition legal staff.
It seems to me that the retweeting by Trump of the ALL CAPS angry note has gone over the line. Trump might attempt to waffle his way out of trouble by arguing that it is plainly labeled as a FANTASY, but such evasions don't carry a lot of weight when they are considered by a judge. The argument is that Trump has great effect on at least some of his followers, and he knows that this is the case. The retweet is essentially the same as though Trump wrote it himself and omitted the FANTASY wording, because why else would Trump have reprinted it?
After all, Donald Trump is not really known as a literary or poetic sort of guy.
A broader context
What the history of the past decade shows us is that being outrageous wins you a place in the political world. At least it does for Trump. He gained a foothold in the Republican world by lying about Obama's place of birth. He pushed the argument about border security about as far as possible, he single-handedly invented a tariff war with China, and he took Vladimir Putin's side against our own intelligence services.
In all of these cases, he made headlines. The man has a genius for staying atop the news cycle. And the news media have acquiesced in being manipulated in such a cynical manner.
The courts and prosecutors have tried to make the argument that nobody is above the law. One judge even pointed out that anybody can run for president. What they are getting at -- and which a lot of people don't yet get -- is that courts demand that their rules and authority be respected and obeyed. Trump has been playing on that very argument by trying to treat the current civil trial as an equal battle between the judge and himself, rather than as the ordinary workings of the justice system. I suspect that within a few weeks, Trump will lose, in that there will be a heavy financial price exacted against him and his family business. But there is already a heavy price paid by the courts and by the justice system as a whole, in the sense that Trump has attacked its legitimacy, its honesty, and its honor. Many of us reject Trump's arguments, but it is obvious (a word I seem to be using quite a lot here) that many of Trump's followers buy into it.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].)