An Essay in Two Parts


I am here not to praise Trump nor to bury him, but to raise the following question: If this is to be a “settle for” election, can we reasonably and responsibly settle for Donald Trump as the next president of the United States?

 JBG head

Jay B Gaskill, Attorney at Law






For now, “The Donald” is enjoying a Halo-Effect. This is the fluctuating mirage that people tend to see when a new would-be leader shows up on stage during a time of discontent.  The Halo-Effect only works when a would-be leader’s image is a screen on which we can project all our hopes and expectations.


The Halo is always a mirage.


This is what has happened so far:  Our two political parties have effectively cooperated for the last half century (both voluntarily and involuntarily) in the creation of a social, economic and political vise. We intuitively know this has taken place. Even without naming the resulting situation, a moment’s reflection exposes the source of the current popular discontent: 


More and more policy is being determined outside the traditional democratic processes. As an exercise, I invite you to make a list of any specific policy concerns of yours that have been subject to a popular vote especially an election in which you were given a meaningful choice. Then make a second list of policies and rules that have impacted your life in which there was no meaningful electoral choice. The result will tell you a lot about the current discontent.


  • Do you recall being asked to vote on whether your passenger car choices would no longer include a new car without an exploding air bag in the passenger seat, or (a pending issues) whether that new car could be available with rear windows you can see out of (avoiding the pending requirement for rear view cameras)? That was a decree by an administrative agency, no member of which has to stand for election…ever.
  • Do you remember voting on whether regular physician visits can be metered out at 15 minute intervals, or that medical staff can be made to key treatment to “diagnostic codes”?  Voters were not consulted.


We can add many more examples. The takeaway point is that the growing list of such regulatory annoyances is very long, while the number of pertinent ballot choices is very short to nonexistent.


For many Americans, the very notion of meaningful popular consent to all of this is a sham. This is why so many are saying to themselves and to others: I’m mad as hell and I’m not going to take it anymore.


We have lived through the gradual expansion of vary large bureaucratic institutions that have taken larger and larger areas of policy and decision-making out of the hands of the so-called ordinary people. In other cases – thinking, for example of international trade arrangements that helped dismantle US factories – there was no meaningful choice between the two parties.  Vast policy changes affecting our lives have been enabled by the political class, yet the political class dodged accountability, in part by placing power in the control of experts and other unelected officials, removed by layers and layers of separation from any elected official. As a result, presidents, members of the congress and party leaders were able to dodge accountability when policies went wrong or were unpopular.


The sense that we are being “managed” by the governing class is deeply irritating to a large set of displaced artisans and blue collar workers. These are the people who used to be the mainstay of the Democratic Party. These are the people who temporarily became “Reagan democrats.” These are the people who are so disenthralled with both parties that, for them, a looming figure like “The Donald” is cloaked by the Halo Effect.


Over the last 20 years, the Democrats have narrowed their policy agenda into a single, hardline progressive catechism, one that leaves little room for the patriotic, law and order factory workers, miners, oil workers, police officers, fire fighters, not to mention all the other men and women who joined those who shouted “USA!” after September 11, 2001.


Unlike the monolithic 2016 democrats, today’s Republicans are split over a whole range of policy issues. This explains why, although both parties are waking up late to the depth and breadth of discontent, the GOP was the obvious Trump target.  Near term, little that happens on the Democratic side is likely to avert the pending Trump train wreck. So I will focus on the GOP’s ongoing primaries and the pending convention struggle


Why it is very late in the game:


GOP strategists falsely assumed that after a minor struggle, the presumptive heir, Jeb Bush, a centrist within the GOP spectrum, could quickly wrap up the contest, aided by a series of winner-take-all elections in delegate rich states.


Anyone who has followed “The Donald’s” career knows that he is a very shrewd operator.  The table that the GOP set for Bush was ready-made for a Trump takeover. No one in the GOP saw it. But no sharp operator would have been surprised. I conclude that the GOP had no sharp operators on duty.


I write this on Leap Day, on the eve of March 1, before the last big vote before Super-Tuesday. Trump’s lead in delegates is 82. This is against a total of 43 for the other candidates, but it is 1,155 short of the number to win the nomination.


Trump’s Nevada win in the popular vote, 45.9%, meant that 54.1% declined to vote for him. In South Carolina, his 32.5% win meant that 67.5 % voted for someone else. Ditto New Hampshire. And Trump actually lost in Iowa to Cruz.


The main GOP “stop the Donald” obstacles are the “winner-takes-all” states yet to vote — Florida, Illinois, Missouri, Arizona, Wisconsin, Delaware, Maryland, Pennsylvania, Indiana, Nebraska, California, Montana, New Jersey, and South Dakota. …And the “winner-takes proportionately more” states: Alabama, Arkansas, Georgia, Oklahoma, Texas, Vermont, Maine, Puerto Rico, Idaho, Mississippi and New York.


If Donald Trump consistently gets a larger plurality than the opposition, say in the range of 40%, the “free” extra delegates awarded in the “take all” and “take extra” states could actually award Trump, a candidate opposed by a majority of GOP primary voters, a majority of delegates and therefore the nomination.


This is a white knuckle period for the GOP.


If candidate Trump shows up at the GOP convention with only 1,000 pledged delegates, he loses on the first ballot; and all his delegates are set free to vote anyone who has been nominated. What happens next?


Look for trades, promises and conflict to ensue – high theater.


But the second ballot is a critical moment. If Trump’s support starts to erode, then the selection of a different GOP standard bearer is likely. But if Trump’s support increases, you will see blood on the floor.


At the moment, the polls show Trump winning in Florida, but Cruz is winning in Texas. That would be a gain of all 99 Florida delegates for Trump, but the 155 Texas delegates would be allocated by a formula, some for Cruz, some for Trump – because Texas is not winner take all.



TRUMP’S GAME, Continued…




Trump is the known, unknown candidate. For most Americans he’s the self-confident image of success, the millionaire (or billionaire?) of Celebrity Apprentice, brazenly charming enjoying the guilt-free glamour of a “self-made” rich man. He is a savvy manipulator with a gift for publicity. And – for most people – he is a likeable character, someone that people like Bill and Hillary liked to be seen with. His glamour is a projected image – a screen.


Back when I was a young law student in California, a second tier Hollywood actor, Ronald Reagan, first ran for governor against democrat Pat Brown. Governor Brown, the elder, was a lawyer, an old style pro-labor democrat who supported John Kennedy, bolstered California education and rebuilt the water infrastructure. Brown was the one who defeated Richard Nixon when he ran for California governor.


Reagan entered the gubernatorial race during Brown’s ill-advised bid for a third term. By then, Brown was vulnerable. He was weak on law and order issues (a flaw I had far less appreciation for back in my unrealistic liberal days, than I do now). And Governor Brown was embarrassed by the UC campus demonstrations, due to the Vietnam War, something Reagan’s operatives quietly exploited.


Reagan, the challenger, was an actor, seemingly coming out of nowhere. At the time, I had the deepest misgivings about Ronald Reagan’s capacity to run a state – a Hollywood actor!


Then, after Reagan’s election (his signature is on my law diploma), I was privileged to get to know several of his key staff people, and through them I learned of the others.  I met Ed Meese, who later became Attorney General; I knew D. Lowell Jenson, a democrat who served as the head of the Reagan Justice Department’s Criminal Division (who later became a highly respected federal judge).  And I knew Kirk West, who served in various roles in the Reagan statehouse. Through these and other contacts I was able to assemble a picture of the Reagan staff.


It was an impressive group with a skill, depth and quality that was unprecedented for California state government.


When Ronald Reagan moved into the White House, he brought with him key members of his California staff. As President, Ronald Reagan had the most competent staff of any president since Dwight David Eisenhower.


And Trump?


Whatever policy differences one might have, and whatever the ultimate verdict of history on the Reagan presidency, his presidency proved decisively that a good staff is absolutely essential to good governance. Reagan’s staff was first rate. Bill Clinton’s first term floundered because the former Arkansas Governor had poor staff support.


The contrast between Ronald Reagan and Donald Trump is stark.


“The Donald” appears to be the hollow candidate in the race, the walking, talking mirage, the one POTUS aspirant without experts, without even a detailed policy outline – other than his trademark fogball slogans. As of now, Trump appears still to be winging it, as a man without a staff worthy of a President. At times Trump looks like a man on a high wire, holding the attention of the crowd, saying in effect – “Look at me! I’m still up here!”


What happens when he is on the ground?


Donald Trump is seeking the highest executive position in the free world, standing on a high wire without a strong policy portfolio, and with no visible presidential staff.  Presumably Mr. Trump thinks he can hire the necessary people at the last minute. One wonders if it has dawned on him yet that he will be legally required to put all his business ventures into a blind trust for the duration of his service. Of course, there are a number of reasons why someone in Donald Trump’s position would want to remain vague and fluid on concrete proposals, and to refrain from identifying specific experts and key staff members – assuming he has yet figured out who he even wants. But most of those reasons (still working on it, not ready yet, having recruiting issues) are no longer defensible.


The real reason to me stems from Trump’s shrewdness.


As soon as a candidate in his position starts to flesh out the prospective governance picture, to color in the lines, to fill the blanks, that candidate will pierce the bubble of unreasonable expectations. And with that “pop,” the fake halo is exposed. Donald Trump will then risk becoming that TV personality and real estate developer guy who wants us to trust him with the future of the United States of America. And based on what? Trump Tower? A few slogans? An honest face?





Trump’s position on the issues is deliberately vague, except where he wants to make a splash.  He straddles the abortion issue, in effect taking both sides, safely out of the discussion.


Trump has the gift of making simple, pungent statements that convey a feeling, an attitude, without revealing much more. They are like party one-liners. The style is cunning. When he supported waterboarding terrorists, he didn’t bother talking about interrogation effectiveness or the legal definition of torture. In effect, he just said, Why are we worrying about the feelings of these scumbags? They had it coming.  Most ordinary people were not shocked, because he was speaking for them.


What about foreign policy? Aside for a declared admiration of Putin and a promise that “The Donald” will broker an evenhanded deal between the Palestinians and Israel, Otherwise, we have a resounding foreign policy silence.


What about the economy? Or its cousin – monetary and trade policies? Trump appears to be willing to depart from the approved free trade policy by deploying protectionist measures as a weapon to get Mexico to fund a border wall. And the rest of the economic issues? Trust me. I’ll come up with something.


What about education? The stressed and shrinking middle class? Your guess is as good as mine.


But Trump did stake out a borderline censorship position on free speech, First Amendment law notwithstanding. Here’s what he has said:


“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. … So that when The New York Times writes a hit piece, which is a total disgrace — or when The Washington Post, which is there for other reasons — write a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”


We are entitled to ask: Who is giving Donald Trump constitutional law advice? In the landmark Supreme Court case, New York Times Co. v. Sullivan376 U.S. 254 (1964), any libel suit against the press must meet the actual malice test, meaning that a publisher can only be held libel if the offending story is false, damaging and that the publisher actually knew that it was a lie at the time.


No one can be sure where a “hit piece” (see above) fits into this test, or whether Trump criterion, “purposely negative and horrible and false,” would ever pass First Amendment scrutiny.


But his threat of increased litigation against the press, “we can sue them and win lots of money,” will have a chilling effect on free political discourse. Whether most Trump-engendered lawsuits fail or succeed is beside the point. The ongoing litigation threat becomes form of censorship. And Donald Trump can be thin skinned.


I am far from comfortable with this. I suspect that Donald Trump is not about the constitution. He’s about Donald Trump.


So Why Trump? Why Now?


Donald Trump is an opportunist.  Now, he is the political opportunist who saw a political opening in the GOP and went for it.


Trump seems to actually believe that his self-confidence and sales abilities can make up for any deficit in his policy credentials and political governance experience, and that – when he gets around to it – he can hire all the help he needs.


Donald Rumsfeld talked about the unknown unknowns, the problem that careless policy makers (and physicians) fall into when they think they know everything – because they do not know enough to ask for more information.


Candidate Trump does not seem to have any curiosity.


We are entitled to ask: Is he motivated by patriotism? One suspects he is unable to distinguish between love of country and its institutions and love of himself and the smell of victory.


The American people are poorly equipped to tell prophet from profit, a celebrity from snake oil salesman, a message they want to hear from one they should hear.  They/we are living in the cyber age where electronic devices flood us with a torrent of information. This is a tsunami of un-vetted, untrustworthy information. Every day we venture into the internet, we must confront an info-swamp that can hide wisdom under an avalanche of slogans, and conceal truth under a mountain of advertising gimmicks.


Low information voters are the new normal.


As Hillary once argued, the Democrat party failed to vet young Obama. Now, as Hillary’s medical and legal issues loom, it is painfully clear that someone failed to vet her.


If we fail to vet Donald Trump now, it may never happen.


Where the presidency is concerned, the American electorate seems to be behaving like a lovesick teenager, disappointed by one romance, then rebounding to the opposite type. Obama was the anti-Bush. And now Trump is the quintessential anti-Obama.


So, really, what is behind the Trump mirage?


An adult electorate would demand to find out before it’s too late. To date, Donald Trump has been treating us as gullible children.


So my question is this: Are American voters still adults?




Copyright © 2016 by Jay B Gaskill, Attorney at Law


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