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Monday, July 31, 2017

Self interest or political stand?

One strand of criticism of media coverage of the 2016 election was that outlets such as CNN only called out Donald Trump's behavior when he started criticizing and attacking the press and its members. The institutional media, it was argued, was not a bulwark of liberty; it was a bulwark of the First Amendment, committed to criticizing attacks on free speech because they directly affected reporters and the press as an institution.

I had the same thought reading this piece by Dahlia Lithwick arguing that Trump's staunchest allies may be pushing back against his excesses, if not outright abandoning him. Her evidence: 1) the Boys Scout's apology for Trump's Jamboree speech; 2) the Joint Chiefs' announcement that they would give no effect to Trump's tweet announcing that transgendered people no longer could serve in the military; and 3) statements by the Suffolk County Police Department, and other departments and police associations, disavowing Trump's encouragement of unnecessary force against arrestees. Dahlia wonders whether "it's fair to ask whether everyone’s had enough of all this racist, homophobic, lawless, and violent “truth-telling,” and whether this trend of American institutions holding Trump to account for his spoken words might continue."

Bracketing the military example for now, it is difficult to view the others as examples of standing up to Trump as opposed to institutional self-interest and self-preservation. BSA issued a passive-voice sort-of apology ("sincere apologies to those in our Scouting family who were offended by the political rhetoric that was inserted into the jamboree"). It neither accepted responsibility for a predictable occurrence, assigned responsibility to the President for overstepping, nor apologized for behavior (e.g., booing the former President) that departed from the organization's avowed principles.  BSA did not abandon the President; it distanced itself from the negative reaction to his speech. This half-statement reflected the minimum necessary to assuage angry current members and to attract potential new members. As for the Suffolk County P.D. and other police organizations, their statements were necessary to avoid the appearance of endorsing excessive force in order to avoid legal liability, both for themselves as municipalities and for their officers. People recognized that speech might become an issue in future excessive-force cases; these statements were the minimum to rebut a suggestion of condoning what the President described and the officers cheered.

It is telling that none of these statements mentioned or criticized the President or his specific words or actions or the organizations' members. BSA did not say it was not ok to boo the former President; Suffolk County P.D. did not criticize its officers for cheering the use of force. The statements were abstract and passive--political rhetoric was asserted into the Jamboree, stories about using excessive force were told--designed to express disagreement with an idea, but not criticism of the idea or the person who expressed it. We will be where Dahlia suggests only when that begins happening. Until then, it strikes me as wishful thinking to see this as more than self-interest.

Posted by Howard Wasserman on July 31, 2017 at 08:51 AM in Howard Wasserman, Law and Politics | Permalink


I agree with your reasoning that responses do not amount to standing up to Trump or holding him accountable. Self-directed apologies simply are not the same as condemnation. However, I would take your wishful thinking diagnosis one step further.

1) There is no need for a BSA apology in the first place. The transcript shows that the President is talking about success and momentum in the same train of thought as reinforcing the BSA values. http://time.com/4872118/trump-boy-scout-jamboree-speech-transcript/. Arguing that the notably rambling Mr. Trump's speech was wrongly political that should be condemned a) assumes that it is possible for a president's public speech to not be construed as political, and b) assigns disproportionate value to what was actually said. It would seem that the apology is only necessary because of prior disdain for the speaker in the first place.

2) The transgender/military tweet was never an official action. The national response to this event is amazing. Mr. Trump tweets, and the population takes that statement as law. My very first thought was "okay, so he said something, but it carries no legal weight." Without any executive order, without any documentation or official requests, why /would/ the Joint Chiefs give weight to Mr.Trump's statement? At that point, clarification of current status quo for eligibility is sufficient. Either the mass population does not understand processes to government, or has gotten to a point where it does not trust that process to take place. I am more inclined to say that the majority fall in the prior. Furthermore, statements beyond addressing the current eligibility would be arguably improper. Reassurance that there is a process is more comforting than a divisive executive branch leaping to sides.

3)I would apply the same reasoning in #2 to the Suffolk County P.D. Mr. Trump, who considers himself the "law and order candidate," and who ran on this idea of "supporting police officers," says in his usual lax and irreverent manner

"And when you see these towns and when you see these thugs being thrown into the back of a paddy wagon -- you just see them thrown in, rough -- I said, please don’t be too nice. (Laughter.) Like when you guys put somebody in the car and you're protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they've just killed somebody -- don't hit their head. I said, you can take the hand away, okay?"

http://www.newsday.com/news/nation/transcript-remarks-by-president-trump-to-law-enforcement-officials-on-ms-13-1.13863979 .

What is missing from the transcript is encouragement to use excessive force, or any force, in any way. Therefore apologies and calls condemnation are not only unnecessary, but misleading. At most what is necessary, is the policy clarification, which I would also argue is in response to the mass re-construing of the speech instead of the speech itself. The high official says don't be too nice, the direct supervisor says continue to do your job to the standards we hold you to.

As for excessive force/ municipal liability claims, I am unpersuaded that a political aside in the context of the entire transcript should defeat immunity at the municipal level. A judge that takes this into account for a Monell claim would hopefully have the entire transcript at hand, and would see that the language is disconnected from any realistic support of known custom. If anything, it was a statement encouraging deviance from a custom.

tl;dr: the BSA had nothing to apologize for. The Joint Chiefs were correct to clarify the status quo and mass interpretation of the tweet as having legal force was irresponsible. The Suffolk County P.D. also had nothing to apologize for, and arguably only had to reiterate the status quo due to mass response.

Posted by: overton windows | Jul 31, 2017 10:46:59 AM

In pursuit of ratings and page clicks the liberal media as a collective has overplayed its hand on Trump. Intentionally or not they have given him a powerful weapon in his next election. Outlets such as the Washington Post and Slate have been hounding him since the day he took office and have made every possible attempt to delegitimize his presidency. On one hand all is fair in love and war, on the other hand the perception among the public that Trump has been treated unfairly is itself a power weapon for him to wield. Trump can say with all sincerity and honesty that they never gave his administration a fair chance and that's why he deserves four more years.

The liberal medias attacks on Trump have been greedy and myopic, in my view.

Posted by: Daniel | Jul 31, 2017 12:10:41 PM

What's weird to me about this piece is that it argues that statements by (1) the Boy Scouts, (2) the Joint Chiefs, and (3) the Suffolk County (New York) Police Department are evidence that Trump's closest allies are beginning to desert him. Now, which of these groups, if any, are among Trump's closest allies?

Posted by: Asher Steinberg | Jul 31, 2017 2:22:32 PM

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