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The Trump-Khan saga: Was this Trump’s Joseph Welch moment? — and why it will not hurt him

Trump got it all wrong constitutionally. His comments again were offensive, and he may be the new Joe McCarthy. Nonetheless, it may not matter.

Khizr Khan speaks at the Democratic National Convention in Philadelphia, with his wife, Ghazala, at his side.
REUTERS/Gary Cameron

The story that now emerges out of the Democratic National Convention is how the best speech on Thursday night — if not the entire convention — was the speech by Khizr Khan. It has overshadowed Hillary Clinton’s, and through the weekend the media went apoplectic over how Donald Trump responded first in attacking the Khans and then in declaring, “While I feel deeply for the loss of his son, Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution (which is false), and say many other inaccurate things.”

Yet again politicians and pundits have declared that this is the controversy that will doom Trump. For those who remember, Khan’s comments are reminiscent of the testimony in 1954 by Joseph Welch, who brought down Joseph McCarthy with his “Have you no sense of decency?” retort.

Some are asking whether Trump just had his Welch moment. I doubt it.

First, there are lots of reasons to condemn what Trump said. It reveals his thin skin, his inability to admit he is wrong, and a quick temper — all of which tell us something about his character and perhaps fitness to hold office. All this is what the Democrats are saying, and the Khan controversy adds to their talking points about Trump not being fit to be president.

Shared contempt for the Constitution

Yet there is something deeper in terms of Trump’s comments that is more significant in terms of a criticism that suggests parallels between him and Joe McCarthy. Specifically, it is the contempt both share(d) for the Constitution. When Trump says that Khan “has no right to stand in front of millions of people and claim I have never read the Constitution,” Trump actually proves the point that Khan was seeking to make. Specifically, the Constitution — and more specifically the First Amendment — gives Khan and everyone else, citizen and non-citizen, the right to criticize public figures and officials. What Khan did was engage in core political speech — the most protected form of speech under our First Amendment.

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Khizr Khan speaking Thursday night at the Democratic National Convention

To use the language of the law, when Trump said Khan had no right to claim he had not read the Constitution, Trump is more or less estopped in his denial that he never read the Constitution, or at least understands it. But this would not be the first time that Trump has displayed no working knowledge of the Constitution. His comments last year about the Fourteenth Amendment and citizenship for immigrants were one example. Trump saying that he would defend the nonexistent Article XII of the Constitution, and declaring at the RNC that he alone could fix America’s problems (to the apparent disregard of the concepts of checks and balances and separation of powers) all suggest Trump is woefully ignorant when it comes to the Constitution. Were he my Introduction to American Politics student he might well earn an F as a final grade for his lack of knowledge of basic American civics and government.

But none of this might matter – I doubt these latest comments will hurt him much. For starters, all but a few people have already formed their opinions about Trump. For those who support him, these comments will not change their mind. For those who oppose him, the same. The only impact here will be upon a few swing or undecided voters. For these few voters, Trump’s comments either will long be forgotten by Nov. 8 or these voters (and perhaps the public at large) may already be numb to Trump’s comments. He has already insulted so many people so many times that these comments are simply one more, and they may not make a difference.

Dominated the news, again

There is another reason, too, why Trump’s comments may not hurt him: He managed yet again to dominate the news cycle. Little attention was given to Clinton over the weekend. She and Tim Kaine toured Pennsylvania, yet she received minimal coverage. Trump controlled the news cycle again, forcing Democrats again to react to what he said. So long as Trump forces Democrats to react to what he said, he wins, making it more difficult for the Democrats to articulate their views and opinions.

So, yes, Trump got it all wrong constitutionally. His comments again were offensive, and he may be the new Joe McCarthy. Nonetheless, it may not matter.

David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take, where a version of this piece first appeared.   


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