"You wanna get Capone? Here's how you get Capone." (Patreon)

One of the irritating things about the academy (and believe me, the list is long) is the simultaneous fascination and repulsion some scholars have with Donald Trump. There is an entire wing of Rhetoric and Communications Studies that focuses on political speech, and an even narrower band of study that analyzes U.S. presidential rhetoric. These folks have most framed Trump and the Trump presidency as an example of demagoguery, placing Trump's speeches and behaviors as part of a fascist lineage, in terms of the uses of racism, far-right virtue signaling, and the implicit appeal to national fraternity based on exclusion of non-white people.

But I think this can be wrongheaded, or at least incomplete, and the Senate impeachment trial will most likely reveal the shortcomings of this rhetorical approach. At issue, of course, is whether, and to what degree, Trump incited his supporters to riot and attempt to overtake the Capitol building. And within our current understanding of free speech and secondary culpability, Trump has the upper hand.

Trump is not "interesting" because of the things he says. Rather, he is a problem because of the careful balance he strikes between what he says and what he doesn't say. Instead of trying to analyze Trump from the standpoint of political rhetoric or public speech, it actually makes more sense to think about Trump as a gangster. His rhetorical methods, such as they are, have more in common with the Cosa Nostra than with politics as we typically understand it.

For instance, one would not be hard-pressed to identify numerous examples of blatant racism in Trump's public statements. However, either by design or (more likely) from practice, Trump always limits his exposure, either by stopping short of making definitive statements of position, or by making statements that can be explained away through interpretation, however strained and implausible. When he calls the developing world "shithole" countries, his surrogates explain it away by claiming that Trump was referring to nations with bad leadership, and not denigrating nonwhite majority countries based on their nonwhite status. Or, when he suggests ingesting bleach to cure COVID, he and his spokespeople, like Kayleigh McEnany, wave it away by saying he was "joking," and condemning the press corps for lacking a sense of humor about a deadly pandemic.

So, at the January 6 rally, Trump exhorts his followers to "fight," to stop at nothing to overturn the legal election of Joe Biden, but then adds, sotto voce, that they must remain peaceful. He is, in essence, saying, "wow, we sure have a nice Capitol building, filled with a lot of traitorous politicians. It would be a shame if something happened to it."

Deploying this street-Derridiansim, Trump always limits his exposure. What he "really meant" can always wave away any consequences for his words, because he is not just vague but playing on the listeners' double-consciousness. And for Democrats and other prosecutors, Trump presents an added complication, because one would have to prove that he knew just how to "read the room" and say just enough to get what he wants. This proposes that Trump is always playing 3-dimensional chess, which goes against the dominant left-wing characterization of Trump as a hapless boob.

I want to make clear, I am not suggesting that Donald Trump is secretly a "stable genius." Rather, he learned a particular survival skill while heading what is, in fact, a New York crime family. He can ramble, spew nonsense, and he instinctively knows how to say things without making any actionable statements or directly demanding some form of action from his followers. You don't have to be smart to be a mobster. You just have to operate within a particular code, which permits you to operate above the fray of concrete statements and directives.

So what does this mean for Trump and the future? Well, we know that the Senate will not convict him, since a substantial portion of the GOP is cowed by Trump's base, and the fear of being primaried. But more than this, we have already heard folks like Rand Paul articulate a defense of Trump's rally appearance as protected political speech. He claims that holding Trump accountable for telling his followers to "fight," or holding him accountable for his his followers "interpreted" the statements at the rally, would create a chilling effect on free speech. Trump's lawyers have made it clear that, in addition to challenging the constitutionality of the trial itself, they will make arguments similar to Paul's.

So we find ourselves in a scenario a bit like Eliot Ness, struggling to nail Al Capone for activities he farmed out to his minions. And just as Ness eventually relied on the IRS to finally nab Capone, it will be non-federal agencies and jurisdictions that will stand the best chance of convicting Trump once and for all. The RICO statute, after all, has provisions for incitement to terrorism, and while this language was crafted to allow the Feds and state attorneys general to go after "masterminds" like Khalid Sheikh Mohammad, who technically have no blood on their hands, it will not be difficult to make the case that Trump's activities, both as president and as head of the Trump Organization, fall within the purview of RICO.

After all, the whole reason the Senate Democrats are proceeding with the trial (aside from the fact that they are legally obliged to, given the House's provision of an Article of Impeachment) is to prevent Trump from ever running for office again. That won't happen in the U.S. Senate. But it will probably happen in New York State, where the Justice Department has a substantial case against Trump. He will almost certainly become a convicted felon. This probably disqualifies him from holding office outright, although there's no question his lawyers will argue against even this basic legal precept. 

But even if Trump finds a loophole, his conviction will assure that he will never again be the standard-bearer for a major American political party. His inevitable creation of the MAGA Party spells bad news for the GOP, who, let's face it, should lie in the bed they made. As for the rest of us, we can most likely rest assured that Donald Trump will never pose a direct threat, at least not any more of one than Lyndon LaRouche did.

No, the problem, as always, will be those politicians in Trump's wake (Hawley, Cruz, Boebert, Taylor-Greene) who are all too happy to court the base, by following the "orders" Trump will very carefully refrain from issuing. The only way to stop this future corruption of the American political system (aside from a majority making a decisive argument that the U.S. should not be run like a Mafia), is to make sure that any up-and-coming Trumpists are afraid that they, too, will be prosecuted under RICO. Because there really are limits to the elasticity of language. At a certain point, the exhortations to violence will become so muted and double-bound as to be generally unintelligible. That is our only hope.

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