In the wake of Donald Trump’s election victory and promised revenge tour, a number of individuals have proposed the creation of an organization or fund which would take on the job of defending the various lawsuits, prosecutions and generalized legal harassment Trump will bring to the table in the next four years. It’s a very good idea. It’s a necessary one. Over the last six weeks I’ve had a number of people reach out to me and ask who is doing this. Where should they send money to fund this effort? This includes people who are in the small-donor category and also very wealthy people who could give in larger sums. So a few days ago I started reaching out to some people in the legal world and anti-Trump world to find out what’s going on, whether any efforts are afoot and who is doing what.
What I found out is that there are at least a couple groups working toward doing something like this. But the efforts seem embryonic. Or at least I wasn’t able to find out too much. And to be clear, I wasn’t reaching out as a journalist per se. I was explicitly clear about this. I was doing so as a concerned citizen, not to report anything as a news story but as someone who wants such an entity to come into existence. The overnight news that Trump is now suing Ann Selzer and the Des Moines Register over her final election poll for “election interference” makes me think that these efforts aren’t coming together soon enough or can’t come together soon enough. (If you’re not familiar with the details, Selzer is a pollster of almost legendary status and in what turned out to be her final public poll, dramatically missed not only the result of the election but the whole direction of it.) So what I’m going to write here is simply my take on why such an effort is important and what shape it should take.
Let’s start with the practicalities.
Trump’s retribution may focus on individuals, but it’s a collective harm. So it makes sense to spread the cost of dealing with it. If person X is targeted for defending the rule of law or democracy or related equities, those are things we all have an interest in defending. So it makes sense to spread the burden.
When a powerful person (and in this case a president) targets individuals, he is trying to overwhelm them, force them to knuckle under because they lack the resources to fight. That does more damage to the civic equities we’re trying to defend. The point of such retribution is to make an example of someone and cast a penumbra of fear that keeps other people from getting out of line. If people are confident their costs — literal and figurative — will be covered they will be more likely to speak their minds, do the right thing, run risks.
These two points are straightforward. But they’re worth articulating. First, fairness: targeted individuals shouldn’t alone bear the costs of protecting collective goods. Second, self-protection: people who believe in democracy and the rule of law have a clear interest in guaranteeing these defenses and preventing the spread of civic fear.
But there’s another need that may not be as clear and its a role some group like this should fill.
Let’s take the Selzer/Des Moines Register suit as our example. Trump is claiming that he was damaged and should be made whole because of a poll that showed him behind and turned out to be wrong. His lawyers are trying to shoe-horn this claim into an Iowa consumer fraud statute. But we shouldn’t be distracted by that. The idea that a political candidate has a cause of action over a poll is absurd on its face. And really that is precisely the point. I’ve written a number of times recently about the ways Trump casts penumbras of power and fear with talk, how he holds public space, how he keeps opponents off balance and guessing. This is another example.
As I noted above, a lot of the power and point of such an exercise is precisely the absurdity of it. It is meant to spur a chorus of “You can’t do that” and “How can he do that?” But he does do it. We have that same mixture of outrage, incomprehension, uncanny laughter, the upshot of which is an overwhelming and over-powering belief that the rules somehow don’t apply to this guy. That’s the power and that is the point. It is a performance art of power enabled by a shameless abuse of the legal system.
This is where I would want such a group to jump in, immediately, caustically and tauntingly saying, “Nope that won’t fly. We’re ready with the best lawyers and a mountain of cash and you’re not only going to lose we’re going to embarrass you for even trying.” Beyond the importance of covering legal expenses and giving people the confidence they won’t be bankrupted by Trump, these are really pro-wrestling-derived public spectacles and performance art aimed at telegraphing power and demoralizing enemies. So much of our politics in the Trump era amounts to this. We’ve seen this. We know this if we’re paying attention. And Trump’s opponents need to learn to speak in that language. Otherwise it’s a professional wrestling grudge match, a taunt-fest with only one side taunting. The other side isn’t even on the playing field. It’s the same mix of outrage, incomprehension, powerlessness and finally exhaustion. I fear some folks simply don’t get this dimension of what’s going on. It’s not something you learn in law school and not in conventional, old-style politics either. Defending the targets is key. But that’s not the only point or even the main one. It’s about demonstrating the limits of Trump’s power and embarrassing him, President or not.
Yes, that’s possible.
To make something like this work you need first-rate legal chops. You also need a big pile of money. You need lots of small donors and you need high rollers writing big checks. There’s a lot of appetite for defending people on the enemies list. There’s even more appetite for embarrassing and wrong-footing this bully degenerate. People like to win. They like to see examples that the good guys aren’t powerless. It all fits together in if not a virtuous than at least fun and satisfying circle. The lawyering and money isn’t enough. You need people who know that language, people who realize that the money and lawyering are critical but themselves only necessary but not sufficient conditions for the main effort. They don’t cover the whole territory that needs to be covered.
Ideally you also want such an effort to be as distant from electoral politics and ideology as possible. Not bothsidesing. Not because they’re not critically important. But because they’re just in a different bucket, best left to other people. Not everyone wants to become a resistance poster child. Not everyone targeted has the same politics. The idea is to have another heavyweight in the ring going toe to toe with this abusive, degenerate behavior, putting real costs to it and limiting the scope of those penumbras of fear, menace and demoralization.
That’s my take. It’s not meant to criticize anyone. And I don’t pretend it’s the last word on the matter. But I do think this is a very important dimension of what this has to be about. It needs to speak and communicate in the language of our time, not that of the legal profession (except in court) or solely that of the good government activism many of us were reared with.
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