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With ‘2nd Amendment’ Comment, Trump Wades into Dangerous Legal Territory


Image of Donald Trump via CNN I can’t even believe we’re having the “did Trump really mean what he said” conversation about yet another inane quote. While Americans line up on Team He-Was-Just-Joking and Team This-Is-An-Assassination-Threat, it seems like everyone is just plain missing the point. Yes, there are legal issues involved here, and I’ll certainly go into those, but there’s more at play as well.

While we often disagree in our political leanings, I have great respect for my colleague, Ronn Blitzer. However, when he defended Trump’s remark by saying he didn’t mean to call for anyone to harm Clinton, he failed to realize one thing: Donald Trump is either unwilling or unable to “mean” most things that come out of his mouth. While that may sound like a defense, it most certainly is not.

My analysis is neither a criticism of Trump’s mental health nor of his intellectual ability – it is an acknowledgement of a skill he has honed over the years. Trump’s experience as a reality television star did more than advance his personal brand – it trained him in a very specific communication style that is unique to unscripted television entertainment. To be successful on reality TV, one must speak in bold and outrageous statements. Most of the time, the content of those statements is utterly irrelevant; what matters is the style, the delivery, and the feel of the lines delivered before the cameras.   Audacious sound bites work; measured explanations do not.

I learned these rules myself when I starred in my own reality television series. As a lawyer, the change in communication style didn’t come easy to me. I was used to building arguments, piece by piece, making sure to present my thoughts as if they were a mathematical proof. But viewers have no time for careful reasoning. Quick is key. Fierce is key. Reasonable isn’t part of the drill. As I began to adjust my speaking style for the cameras, I was aided in large part by another unique facet of the television business – editing. The knowledge that my words would later be edited was the ultimate safety harness; it didn’t matter if my in-the-moment statements lacked a little accuracy, because we could fix them up later when we reviewed the footage. If I went too far, or if a joke went wrong, the editors could just cut that part out. That freedom allowed my costars and me to essentially say anything, just to see how it all played out. The goal was to ignite the audience, not to guarantee accuracy. Sound familiar?

Donald Trump has dominated reality television because he has become masterful in the art of the sound bite. Other masters of unscripted entertainment, like Howard Stern, Joy Behar, and Rosie O’Donnell have learned to balance the need for brash talk with some level of personal constancy — a pursuit that doesn’t come without challenges or public criticism. But Trump is not confined by rules. His total commitment to form over substance is what has made him successful in entertainment and in politics. He is constrained neither by the bounds of logic nor the limits of consistency. And the problem isn’t that Trump is an entertainer. Many entertainers (Bill Maher, Jon Stuart, John Oliver, Neil Cavuto, and Bill O’Reilly, to name a few) are virtuosi in the art of building persuasive arguments and delivering them to hungry masses of viewers. Given Donald Trump’s natural charisma, he likely could have done well on many entertainment platforms; but he chose the one that eliminates accountability. The debate over his ostensible call for Clinton’s assassination shows that even his fiercest opponents are unwittingly being influenced into believing that Trump’s speeches are more substantive than they truly are.

In reading Blitzer’s piece, I couldn’t help but think that his analysis was proof of having been taken in by the Trump Show. Ronn’s assessment that “Trump was clearly joking with his comment, playing on the issue of the right to bear arms,” couldn’t be more wrong.

Trump wasn’t joking. A joker speaks with intent – the intent to make people chuckle.   That’s not what Trump was doing when he suggested that “the Second Amendment people” could “do something about” Hillary Clinton’s potential SCOTUS picks. Trump wasn’t being comedic any more than he was actually calling for HRC’s assassination – and any arguments for either interpretation simply miss the point. Donald Trump does not speak with intent at all. He just speaks. The “meaning” of his statements is a fluid concept, always developed retroactively by others.

In my own opinion, Trump’s syntax is quite a bit more telling than his messaging. One doesn’t use the phrase “the Second Amendment people” unless one is clearly opting out of that group – a maneuver that is another hallmark of the Trump brand. By distancing himself from the very groups from which he draws support, Trump demonstrates that his training in television informs his campaign on every level. He is the star; everyone else is a viewer, ripe for manipulation.

From a purely legal standpoint, I’m not nearly as convinced as Mr. Blitzer is that Trump’s statements aren’t somehow actionable. I agree that it would be quite difficult to establish that Trump intended to inspire assassination attempts on his rival – but that’s largely because it would be almost impossible to establish that Trump intends anything when he speaks.  However, intent to do harm is not the only basis for illegality; words can create legal consequences because of their effect on the listener. The fact that Trump didn’t mean to incite violence doesn’t preclude a finding that his comment would be reasonably likely to do just that. When a person speaks before millions of supporters, that speech has predictable consequences. When an ordinary person would hear speech and interpret it as a call to arms, it becomes a call to arms whether it was intended to be or not. That distinction is why the law applies different standards of intent to different situations. Sometimes, “intentional” actions are prohibited by the law; but other times, a person has acted illegally when he or she “knowingly,” “recklessly,” or “negligently” causes dangerous consequences. Hillary-haters should already be more than familiar with these distinctions. Rudimentary logic and basic fairness require that anyone, regardless of political beliefs, see Trump’s statements for what they always are: empty words with potentially serious consequences.

Follow Elura Nanos on Twitter @elurananos


[Image via screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos