Vail Daily column: Can the GOP dump Trump?
I was deliberate in how I phrased the title of this column; “can” the GOP Dump Trump, rather than “could” it, “would” it, or “will” it dump him? As Bill Clinton once famously observed, “words matter.” What I’m trying to get at here is not the likelihood that the GOP will line up behind a candidate other than the bombastic Donald Trump but, instead, if it did so, would it be permitted? Can it, not will, it dump the Trumpster?
If you haven’t yet heard, the Dumpster Drivers are after it again. Certain elements of the GOP — apparently dozens of the Cleveland delegates among them — are rallying forces to bypass Trump at the convention. Presumably, the Brexit chaos will turbocharge them all the more. And Trump — not unusually for him — either misinformed, confused or simply bloviating. Recently, he was quoted as saying that if the GOP dropped him at the convention, it would be “illegal.”
Ah… no, Trump. While it might be many things, illegal would not be one of them.
Let’s first get our terms right.
The are two major divisions of the law: civil law and criminal law. Civil law deals with disputes between persons and/or entities. Civil law deals with private disputes.
Criminal law deals with crimes.
The remedies for civil disputes generally consider compensation for a private wrong, the most common measure of which is money. If I come after you in a civil suit and win, most times what I get is money. There are exceptions to be sure — divorce is a civil action and the goal is legal severance of the marriage, rather than financial compensation — but in civil matters, incarceration is not part of the equation. As but one example of a civil matter, say you enter into a contract and the other party to the contract fails to perform her legal obligations. You sue for breach of the agreement and what you seek is the monetary equivalent of the breaching party’s lack of performance or the monetary damages caused her failure to perform.
Criminal law deals with offenses against the state, although the state, may be the state, the federal government or a municipality. Crimes involve the violation of one or more criminal statutes and the loss of a criminal action results, most commonly, in punishment whether by fine, a period of time to cool one’s heels behind steel bars, or both. The TV crime shows deal, not surprisingly, with crimes. If one, for example, embezzles, he has committed the crime of embezzlement and will likely spend time watching paint dry in a prison cell. Embezzlement is a crime against the state.
Illegal means not permitted by law. It means committing a crime. So rephrasing Trump’s accusation, would the GOP dumping Trump amount to the commission of a crime?
Stated simply, there is no crime of changing candidates at a political convention. Neither is there a crime of voting to change the convention rules. What must be understood is that the political parties — while regulated by certain laws — are private organizations rather than government entities under direct governmental control.
Change the rules
One way to stop Trump from being named the Republican candidate for president would be to change the convention rules. Leaving aside whatever political fall-out so doing that might engender, it remains a mechanical possibility. The procedures governing the convention will be whatever the majority of the delegates approve.
The current rules — which the betting money says are most likely to be approved — appear to hand over the nomination to the highest vote-getter in the primaries. But there is nothing legally sacred about that. Should a sufficient number of the delegates get their undies in a bunch about Trump, a little presto-change-o, and new rules could be adopted. One option might be to change the nomination threshold from a simply majority of delegates to a supermajority of two-thirds or even higher. If that were to happen, the convention might be thrown wide open and a white knight, such as Wisconsin Governor Scott Walker might emerge as the new standard-bearer for the GOP.
Another option might be to immediately let delegates support whomever they like. There is some dispute within the party and among convention scholars as to whether delegates are bound at all. Some argue that the rules already let delegates to support whomever they like rather than support those to whom others say that they are bound, at least on the first ballot. It has been said that the primaries award the candidates bragging rights, but not necessarily the nomination.
Whether likely are not, there are arguable paths to block Trump from the nomination. If that comes to pass, would so doing be “illegal?” No, Trump, it would not. But the civil action that Trump and his advisors might conjure up and hurl at the GOP might be a fascinating thing to see.
What might he sue for? Perhaps some breach of contract theory premised on violation of the party bylaws? And how would damages be measured? What compensation might be available to Trump if he were successful in a suit? And would he take down the GOP to prove his point? Might the court enjoin a nominee if it were other than Trump from accepting the nomination until the whole mess was sorted out? Or might the court enjoin Trump if someone other than him claimed the mantle of the party?
To cite the old Chaldean curse, “may you live in interesting times.” It seems, in fact, we do. Hasten your seatbelts tight. We could be in for a Trumpy ride.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, email@example.com and firstname.lastname@example.org.
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