There was a lot of journalistic soul-searching this weekend about how we cover Donald Trump’s various scandals relative to comparable Clinton scandals, how we cover the president’s fabrications, and all the ways in which he uses distorted conspiracy theories to undermine the press, his own Justice Department, and public confidence in any institution but himself. That soul-searching must also focus on questions of law, where the media continues to fall prey to Trump’s distortions. When the president makes pronouncements about what is “legal” and “illegal,” and what he believes he’s been cleared of doing, we often parrot those words back as if he were saying something meaningful or real. He isn’t.
The best example of this practice is the president’s persistent use of the word collusion. Trump has insisted on dozens of occasions that he has been cleared of all charges of collusion and that the Mueller investigation is thus a “witch hunt” that persists despite his proven innocence. As legal experts have insisted for more than a year, there is no generally agreed-upon crime called collusion, which is shorthand for a host of different possible charges. As Ryan Goodman and Ron Fein have explained, the word is legally imprecise to the point of being borderline nonsense. The formal scope of the Mueller probe is also far broader and deeper than mere scrutiny over whether Trump or his campaign “colluded” with Russia to steal the election.
Now it has recently emerged that Mueller is refining what he sees as collusion, and that the scope of his investigation has sprawled beyond collusion into other areas. (And it’s worth pausing to note that Mueller has indeed sought and been granted permission to expand his inquiry in precisely this way.) We can now suppose, based on leaks earlier this month, that Mueller is probing whether Trump obstructed justice when he fired James Comey, and we also know that Mueller is still investigating the possibility of coordination or conspiracy between the Trump campaign and Russia. Jeffrey Toobin argued last month that Mueller may now be calling what he is looking at “collusion” for pleading purposes while describing activity he has charged elsewhere (with respect to Russians and Russian entities) as a “conspiracy to defraud the United States.”
As Goodman warned last fall, “focus on the term ‘collusion’ has had the effect of implying precision where there is essentially none. Meeting the standard of ‘proof of collusion’ isn’t a matter of meeting a technical definition or threshold—it is a matter of persuading enough people that what we’re seeing is collusion.”
Even so, some journalists—left and right—continue to follow Trump’s cues, arguing that collusion is some pre-defined thing, and that if Mueller turns up no collusion then Trump is exonerated, and the Mueller investigation will have been polarizing and pointless. It’s important to recall that this sort of claim accepts Trump’s legal framing, and Trump has been wrong on that framing for more than a year.
Even stranger, no less a legal scholar than Kellyanne Conway has now decided to embrace the fact that “collusion” is a nonsense word. “So much is happening that has nothing to do with this phony baloney talking about the 2016 election,” she said on Fox & Friends on Tuesday. “Every time people talk about this phony Russia collusion—collusion doesn’t even have legal significance.” Wait. Is she actually now saying, “Why are you all focusing on a word that we made up last year? There’s no such thing. There never was.” Now that there is next-level alternative fact work. And it’s the trap we fall into when we accept the president’s free-association word paintings as legal analysis. If you depend on Trump’s Law Dictionary, you’d better be prepared for him to change the definitions whenever he sees fit.
Last week, Trump launched another legal stink-bomb when he began to allege—again without legal or factual merit—that a “criminal deep state” cabal within President Obama’s administration had planted a “spy” inside his presidential campaign to frame him and his team and to help Hillary Clinton win. He even branded this alleged plot to plant evidence against him as “Spygate.” As his own lawyer Rudy Giuliani admitted, this whole “scandal” was a ploy to sway public opinion and deflate the possibility of impeachment. The whole idea is to create a TV-style brand for a TV-style “crime.” This risible, made-for-TV version of events then forces lawyers and politicians to explain that counterintelligence operatives are not in fact “spies” and that there is no crime here. But the act of debating the thing all week has the effect of introducing doubt and fuzzing over reality, at least enough to erode confidence in the FBI and the DOJ. And that in turn allows Republican Sen. John Cornyn to blurrily tell the New York Times, “I wouldn’t describe it the way he described it. Confidential informant? Spy? I guess he can use his own words.”
With all due respect to Cornyn: No, the president doesn’t get to “use his own words” when talking about the law, even if his words are the best words, because when it comes to the law (among other things) Trump’s words are not attached to anything real. As Philip Bump at the Washington Post pointed out in January, Trump uses the word “illegal” the way small children do: to describe anything he dislikes, especially as it pertains to him.
The linguistics guru George Lakoff has been warning us for some time that the one and perhaps only thing at which Donald Trump is truly a master is using our own “neural circuitry” against us. Trump trains our unconscious brains to accede to his framing by using a handful of old mattress-commercial tricks: repetition of simple words and phrases; framing any acts that threaten Trump as a “strong father” as inherently illegal and immoral; the use of grammar and examples to sow consistent doubt about bad actors. When Trump says “witch hunt” and “SPYgate” and “Deep State,” he is framing legal institutions and processes as shadowy and illegitimate conspiracies against him, regardless of truth or fact.
Trump once told Tony Schwartz, the ghostwriter of The Art of the Deal, that he calls this trick “truthful hyperbole,” adding, “It’s an innocent form of exaggeration—and it’s a very effective form of promotion.” While this may be a deft way to move Trump steaks or fake universities, it’s not a productive way to discuss legal claims or potential legal exposure. Lakoff warns not to repeat these claims in order to refute them—it only burnishes Trump’s own legal language and framing. And while Trump can call his steaks or his universities or his wines anything he likes, he can’t rebrand standard counter-intelligence as “deep state spying” or a broad Mueller investigation that is not yet completed as a “witch hunt” over “collusion.”
By which of course I mean that he can do precisely that, if we allow him to do it. Last week, Masha Gessen encouraged her readers to continue to assert fact-based reality, even in the face of crippling lies and distortions. Gessen quoted Simone Weil, who wrote in her journal in 1933, “Never react to an evil in such a way as to augment it” and “Refuse to be an accomplice. Don’t lie—don’t keep your eyes shut.” When it comes to legal distortions as much as any other distortions, we need to decline every day to enter into the lie. We need to keep calling legal events and ideas what they are, and not tenderize them into sides of Trump law meat. The president’s pronouncements about the law at this point should have no more linguistic or legal force than comedian John Mulaney’s claim that the president is a horse in a hospital. It’s a terrific bit, and a funny new frame. But it isn’t truth, and it isn’t law, until and unless we invite it in to dinner.
One more thing
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