I grew up fantasizing about killing Nazis.
In fact I did that almost every day. We called it “Playing Army”, with real WWII guns and uniforms. All of our dads had served. We all had war souvenirs in boxes in our basements.
There was a bit of a rift between those of us who wanted to pretend to kill Nazis and those who preferred to kill Japanese soldiers. We split according to whose dad had served where. Since my dad had a German Luger and a coupla real swastika arm bands in the bottom drawer of his dresser, taken off a dead German, I liked killing Nazis best. It was in my blood.
My dad forbade me to ever take those armbands out of the house. He desperately didn’t want anyone to get the wrong idea. You see, his two best friends in the world left their little New Jersey home town with him on the same day in ‘43, and all three of them headed for their respective boot camps.
The other two never came back. They’d been whacked by Nazis.
Days after V.E. Day my dad was in Dachau where the murder victims’ bones were still stacked in piles. I saw the photos. So, you can see why my dad didn’t like Nazis very much.
When I see people doing Sieg Heil Hitler salutes on TV it kinda rubs me the wrong way. Makes me wish I were 20 and a student at UVA. With a baseball bat in my hand.
I say all of this to make sure that no one misunderstands me if I say something almost supportive of Trump’s comments from his press conferences last week.
When I first heard him rambling on as usual in front of the cameras last Tuesday it immediately occurred to me that he was being very effective, in his own pumped-up-Trumpian way. I tried to explain that opinion to people, but all they heard was that I was not sufficiently outraged by his words.
Don’t get me wrong. I was.
But before you can really critique him, you have to look at his “oral argument” critically, put yourself in the position of his audience, and see if what he is saying sounds the same to everyone and whether it might be effective for some of them, if not all.
For me, at least here, the critical approach that works best is to analyze it as I would analyze a lawyer’s oral argument in court. Because that was essentially what it was: a person playing lawyer trying to defend himself in the court of public opinion.
I teach trial practice to lawyers. This is how I would grade Trump if he were one of my students:
Focus On Undisputable Facts
Trump began strongly by pulling a piece of paper out of his inner suit coat pocket (nice dramatic flair, btw), which was a verbatim quote of what he had first said about Charleston. Assuming that was accurate, then there it was in black and white.
As for the audience, when he read that, people who don’t like him only heard that he was being a racist because he was not condemning the Nazis by name.
He doesn’t care. That is like a lawyer worrying about what a prosecutor thinks of their argument. Who cares? They are not your audience.
The “jurors” for Trump are people who voted for him. They only heard that he was condemning violence.
He goes on to say that “there was violence on both sides”. Here we see the Great Divide in the audience even more dramatically. The “prosecutors” in Trump’s Court of Public Opinion saw this as doubling down on his clueless racist comments. His “jurors” saw lots of different people fighting.
They figured it takes two to tango and that there was absolutely nothing wrong about calling out both sides for being violent. It was right there on their TV’s.
Moreover, they thought that Trump was being treated totally unfairly by the “prosecutors”. I have to say, if a lawyer can get jurors to think like that about prosecutors I would never say they were doing anything wrong. Quite the opposite, in fact.
So, excellent work, Mr. Trump, persuading your supporters that you are right and everyone else is wrong and unfair.
Appeal to Jurors’ Emotions
In trials, this typically takes the form of encouraging jurors to be sympathetic. It might mean making them feel outraged or concerned about government misconduct in criminal investigations, but that is not common since most jurors don’t want to hear that.
Here, with his supporters, he has a predisposed jury. They already don’t like the “prosecutors”. So Trump pointed out how the Media were not reporting Charlottesville accurately, and were unfairly criticizing his prior comments. “NO FAIR!” he said. Then he changed the subject and hinted that statues of George Washington and Thomas Jefferson might need to come down next.
Even most of his “prosecutors” don’t like that. His “jurors” certainly don’t.
So: so far, so good. I began to think the guy might have some debate skills after all.
This is where the worm began to turn.
DO NOT Take On the Burden of Proof, Especially When It Exposes Your Flank
“Huh?” you may well ask. It works like this: my clients frequently want me to argue what wonderful people they are. That’s called Character Evidence.
There are two problems with this.
First, it is only allowed in very specialized situations, such as self-defense, when it may be allowed to show that the defendant knew the “victim” to be violent.
Second, it opens the door to impeachment. I’ve seen lawyers make this mistake. They get up and argue that their client is so nice and wonderful. Then the prosecutor gets up and systematically goes through a long laundry list of all the times when their client wasn’t, shall we say, so wonderful.
The defense attorney starts looking for holes in the floor to crawl into.
Which is how I felt when the worm turned for Trump, when he began saying that people walking alongside people who were chanting anti-Semitic drivel and doing Nazi salutes were wonderful people.
Uh, ever heard of guilt by association? It’s real. Anyone marching alongside these racist losers is by definition a racist loser, which is precisely the impeachment Trump invited – even from many prominent Republicans.
Many people just don’t like people who hang out with Nazis. They tend to think they are all Nazis.
The Final Straw: Demonstrate Empathy, not Indifference
Even when I am taking a witness apart on the stand I almost never make it look as if I don’t empathize with them.
I try to find a way to say something that shows I feel sorry for the lying witness who was so traumatized by their abusive childhood that it led them to lie about what my client did as a way of getting revenge against their past abusers. Or a cop who made a mistake is a valiant officer who is just overworked and underpaid.
When Trump began crowing about how big his… WINERY was…?
He gets an F. What a clueless insensitive change of topic. BAD! AND STEWPUD.
But this is the main reason why I give Trump an F for his strange press conference:
HE IS NOT A LAWYER TRYING TO PERSUADE A JURY IN COURT. He is the President of the United States of America. His job is not to persuade people that what he says should never be criticized or that he is being treated unfairly or that he has a big winery. His job is to Govern.
EVERYONE. Regardless of their color, or political beliefs, or whether they blindly worship everything he says like all those poorly educated fans of his.
He might want to “think before he speaks” in his next press conferences, another thing I tell lawyers to do.
Something the “Leader of the Free World” should know without needing me to tell him.
Image by Peter Merholz, edited for size.