Ever have a co-defendant that you didn't quite want to oppose and didn't quite want to embrace either? A good portion of the Grand Ole Party seems to be having the same problem right now. While the newly-minted Trump wing of the party celebrates the candidate's ascension to the 2016 GOP nomination, many more traditionally-minded Republicans are finding themselves in a tough spot. After last week’s Indiana primary left Donald Trump as the last candidate standing and the presumptive standard bearer for the Republican party, officeholders and other opinion leaders across the party have faced the choice of whether and how to reconcile themselves to that fact. This campaign has proven (over and over again) that anything can happen, but the realities of the polls and the electoral map have stoked fears of not only a loss in the presidential race, but losses down the ballot for Republican House and Senate candidates based on historically high unfavorability ratings, particularly by women, Hispanics, and other minorities. That uphill climb has led some to try to put some distance between themselves and the candidate. Some in the establishment are straight-out saying that they cannot support Trump. Senator Lindsey Graham, for example, shared "I think Donald Trump is going to places where very few people have gone and I'm not going with him." Jeb Bush, who is joined by his brother and father in withholding support, also agreed that Trump had not demonstrated the “temperament or strength of character” to qualify for the presidency.
Others, like New Jersey Governor Chris Christie and former Texas Governor Rick Perry, have simply written off their earlier statements (e.g., Perry called Trump a “barking carnival act,” and a “cancer on conservatism”) in order to flip the switch to endorsement. Most, however, seem to want to explore, at least for now, the broad gray area between opposition and embrace. The most common line has been the reiterated, “As I’ve said before, I will support whoever wins the nomination,” without mentioning Trump or acknowledging the fact that the nominee will now be no one but Trump. Others have been less supportive (like House Speaker Paul Ryan who is "just not ready" to support Trump as the nominee), or more equivocal (like New Hampshire Senator Kelly Ayotte who “supports” but does not “endorse” Trump).
That stance reflects a need for rhetorical “dissociation,” which as I’ve written before, is a maneuver that is designed to separate the bad from the good when it comes to perceptions and attribution. For establishment Republicans, that means supporting the party while opposing, or at least not fully embracing, the party’s choice. For Republicans in close elections, it means putting a little daylight between yourself and a candidate who is a lightning rod for criticism.
That need for dissociation is common in litigation as well. Parties in discovery or trial will often need to distance themselves from past behavior or from the actions of employees or agents. Large companies often need to distinguish the popular perception from the reality. But the particular brand of dissociation Republicans face right now is most similar to a defendant’s dilemma in how to deal with a not-quite-adverse-but-less-than-fully-embraceable co-defendant example. So let's draw a few parallels between the political scramble related to Trump and the litigation distancing related to co-defendants.
One, Think of Yourself While Realizing, that to at Least Some Extent, You’re in This Together
Every officeholder seems to cherish one thing above all others: reelection. Sure, it would be great for one’s party to win the oval office, but personally staying in one's own office is often the first order of business. On that front, Republicans in the U.S. Senate and House, and even at state and local levels, have cause to worry. If Trump’s name at the top of the ballot holds down traditional Republican turnout, while at the same time also motivating higher turnout from traditionally Democratic groups, then election prospects are dimmed even for those Republicans who have tried to keep some daylight between themselves and Trump.
A parallel problem of being in the same (leaky) boat can affect co-defendants as well. Litigators in multiparty litigation well understand that, even though jurors can and do draw distinctions, the fortunes of multiple defendants do tend to rise and fall together. Skepticism toward the plaintiff’s case lifts all boats, while a perception of mutual finger-pointing at the defense table can sink them all.
Two, Choose Your Words Carefully
Speaker Ryan's statement this past Thursday that he is “just not ready” to back Trump as the nominee, is interesting for another reason: Over the course of a 10 1/2-minute interview, he never used the candidate’s name. It is one thing to think about supporting the party’s “standard bearer,” and another thing to support “Trump,” even though they are now one and the same. As the Washington Post noted, "There is also a political calculation to treating Trump as the 'Harry Potter' villain Lord Voldemort — whom the novel series’ characters refer to as 'He Who Must Not Be Named.'" They're trying to limit the usefulness of any sound bites to the other side.
Co-defendants need to be similarly careful with language. For example, you will probably want to avoid using "we" when referring collectively to co-defendants, and you might also avoid the term “co-defendants" altogether. While you will be inevitably be lumped together at least a little bit, you don't want to magnify that perception to the point that you're at risk of being mistaken for the same party.
Three, Distinguish Between Passive and Active Support
Right now, the strategy of choice among Republicans who are not excited about Trump, but not bold enough to oppose him either, is to offer support but make it passive. Representative Peter King, who earlier said that Trump was “unqualified to be president,” recently endorsed the apparent nominee, adding “but not with enthusiasm.” Similarly, Idaho Representative Raul Labrador said that he would support Trump but not participate in his campaign until Trump "grew up a little bit."
That attempt to thread the needle between "not opposing" and "supporting," also parallels the need of many co-defendants. For example, in medical negligence cases involving several doctors, it is not at all uncommon for one doctor to find something to criticize in another doctor's care. While the doctors can sometimes feel like they're helping their own cause by throwing someone else under the bus, their more savvy attorneys know that jurors are likely to think that any doctor willing to point fingers is probably also blameworthy. When the doctor genuinely feels that her colleague's care has problems, however, the best advice is to stay in your own box: The box created by your own specialization and expertise (I cannot say whether that is or isn't within the standard of care because I'm not an ER physician) and the box created by your knowledge of the facts (I can't say because I wasn't there and didn't see the same presentation that Dr. Smith saw). When active support isn't possible or advisable, simply staying out of it can be a form of passive support.
That's what a fair number of Republicans are trying to do at this point.