There isn’t a single paper or TV station, or Democrat that isn’t enraged by Trump’s call to ban all Muslim entries to the US temporarily. The column miles that are being written by the pundits vie to each present a more vicious and indignant rejection of his views than the previous one. Trump is being called all kinds of things. In fact, some of the hyperbole applied and the invective is worse than anything Trump ever came up with. He is labelled a clown, a fool, a racist, an opportunist and even a fascist. Most often he is labelled a demagogue, compared to Mussolini, and even, but a little more circumspectly, to Hitler (for fear of Godwin’s Law). He has got more publicity and column-miles and TV exposure than all the other candidates, Democrat and Republican, together. The consensus wisdom is that if he wins the Republican nomination – which is said to be highly unlikely – then it will be a walk-over for Clinton.
But I wonder.
Let me use an analogy from the business world, not least because that’s where Trump comes from. Let’s suppose that the American election is an arbitration process between two parties in conflict. First, each party prepares its initial submission. This is a litany of the most extreme positions and a collection of the most outrageous claims against the other party that can possibly be imagined. Such a submission, from my experience, fails the test if our own lawyers do not themselves cringe from the extravagance of the claims. The initial submission often contains embarrassingly tenuous and far-fetched claims, ignores any semblance of rational thought and just baldly asserts the claims. In my analogy then the nomination process is this preparation of the initial submission. Trump and Clinton are the lawyers hoping to be engaged and are preparing the submissions they propose to begin with. The Presidential election itself is then the arbitration hearing with the American electorate as the arbitrator. In such hearings the arbitrators are primarily interested in seeing which claims fall away and can be put aside. That depends on how well each party presents each outrageous claim and how effective the other party is in nullifying it. Ultimately the arbitrators rule, based – not on abstract notions of natural justice – but on a practical, prevailing “centre of gravity” position, from among the surviving claims. Arbitrators are concerned with the best justifiable result rather than with justness or fairness. Invariably, an arbitration result favours that party which can protect its own outlandish claims while destroying the opponents claims.
Arbitration Result where Clinton is Party 1 and Trump is Party 2
We always used specialist lawyers, rather than our usual contract lawyers, for arbitration cases during my working career. They were the experts at stretching claims. Initially, I used to cringe at some of the shameless and barely justifiable claims that were introduced into our initial submissions. But it soon became clear to me that the critical step was in establishing the shape and the width of the field of play, by extending its area way beyond our desired final result. An arbitration was then a negotiation of claims – under special rules – on the playing field so established. A party comes closest to its desired result by expanding the area of its claims such that the desired result becomes – for the arbitrator – the centre of gravity position of the claims surviving the negotiation.
I see something similar in the way Trump is proceeding. I begin to wonder if Trump does not actually see himself as being in an arbitration in front of the US electorate as the final arbitrator. His over-the-top comments about illegal immigration and “the wall” and now his outrageous proposals about temporarily keeping all Muslims out, are actually defining the boundaries of his playing field. His outlandish claims have to be shot down but the new field of play is established. But just shooting down the claims is not enough. Unless the Democrats are equally outrageous, the field of play remains the one he has defined.
I think the media and the Democrats are missing that the playing field itself is being skewed by Trump’s apparently insane assertions. Every crazy position he has taken is now on the table and part of the discourse. He has been declared dead so many times by the pundits that I no longer take any obituary at face value. And the Democrats will have to shift the playing field if Trump does win the GOP nomination. Merely attacking Trump on his own playing field could prove to be quite ineffective.
Trump is playing a different game to his Republican rivals and to the Democrats. He is not preparing for an election. He is preparing his case for arbitration next November. On his field of play. My expectation is that at some time Trump will go Independent and change the game again.
Tags: arbitration, Donald Trump
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