This article first appeared on the Dorf on Law site.
Anyone who was looking for a change of "tone" (or something like that) after the Republican convention was quickly disabused of the idea that anything can change in the world of Donald Trump. The legitimacy conferred by being a major party's nominee is evidently not enough to alter Trump's bulldozer approach to politics.
Not only did Trump attack Senator Ted Cruz during a bizarre event the morning after the convention ended, but one of Trump's sons went on a Sunday talk show and reprised his father's fringe conspiracy theory about unemployment rates.
The post-convention Trump campaign, in other words, looks exactly like the pre-convention Trump campaign. I can hardly blame anyone for hoping for something different, but this truly was wishful thinking.
But before the Democratic convention gets into full swing, and before Trump issues his next fusillade of outrageous comments that will send fact checkers into a frenzy, it is worth thinking through the post-convention tiff that has arisen between Cruz and the Trump camp. That dispute is interesting not just for the usual political reasons, but because it gives an insight into whether Republicans really think that "a deal is a deal."
By now, everyone knows that Cruz's speech at last week's convention pointedly did not include the words, "I endorse Donald Trump for President," or anything close to that. Instead, he exhorted listeners to "vote your conscience." Trump's people apparently fear that too many Republicans' consciences will not allow them to vote for Trump, so they are lashing out at Cruz.
For example, one wealthy right-wing donor—the head of a family that is so deeply in the fever swamps that they have said that Hillary Clinton "would repeal both the First and Second Amendments of the Bill of Rights"—apparently understands Trump's toxicity, because he "has helped fund a new effort for donors who want to defeat Mrs. Clinton, but who do not want to donate to a group that is openly supporting Mr. Trump."
It is thus politically important for Trump backers to punish Cruz for saying something that might cause conscientious voters not to choose Trump. The most obvious punishment will come through withheld donations for future campaigns. Only time will tell if Cruz made the correct calculation that conservatives will forgive and forget by the time he announces his candidacy in 2019 to unseat President Clinton in 2020. (He might not even wait until 2019, of course.)
My guess is that memories will be short. If Cruz truly has just signed his own political death certificate, however, I would hardly be the only person to celebrate.
And speaking of signing things, there is the matter of "the pledge" that Cruz supposedly violated. Trump's backers have been screaming (in many cases quite literally) at Cruz for violating a silly pledge that all of the candidates signed last year (and were asked to reaffirm at various times).
That pledge reads, in its entirety:
I [name] affirm that if I do not win the 2016 Republican nomination for president of the United States I will endorse the 2016 Republican presidential nominee regardless of who it is.
I further pledge that I will not seek to run as an independent or write-in candidate nor will I seek or accept the nomination for president of any other party.
The pledge is obviously unenforceable as a matter of law. Even so, it is interesting to examine how the two sides use arguments drawn from contract law to defend their positions, here and in other contexts.
After a convention in which a famously plagiarized speech included the phrase "your word is your bond," both Trump and Cruz are displaying that neither of them wants to be held to his word. Republicans, who make a habit of disparaging lawyers' supposed love of "fine print" and "technicalities," are discovering that contract defenses are actually important.
As an initial matter, note that Cruz has not actually violated the pledge. Because the pledge puts no deadline on the endorsement, nor the manner in which it will be given, Cruz has simply not yet endorsed Trump.
But does it matter that Cruz has essentially waived that defense, making it clear that he has no intention ever to bestow his endorsement?
If that matters, then what about Trump's admission that he received an advance copy of the nonendorsement speech, yet he still allowed Cruz to speak at the convention? Did Trump waive any right to press a case against Cruz?
If the argument is that the contract implicitly said, "The endorsement must come during the convention, if the failed candidate is allowed to speak," then Trump received notice and failed to protect his rights. But if no such implicit clause is read into the contract, then Trump also loses, because Cruz might yet endorse Trump (maybe on November 9?).
Much more interestingly, Cruz's defense of his nonendorsement draws from his own creation of an implicit clause in the pledge/contract. He has said that, when he signed the contract, he did not know that Trump would attack Cruz's wife or that Trump would insinuate (based on a report from the National Enquirer) that Cruz's father conspired to kill President Kennedy.
Of course, the Pledge does not explicitly say, "This agreement is void if the nominee has attacked my family." Even so, Cruz could say that this, too, is an implicit requirement of the contract, or at least that Trump's outrages provide a valid excuse for Cruz not to perform as promised.
The problem for Cruz, however, is that invoking those arguments puts him firmly in the "modernist" world of contract law. Conservative contract scholars have long pined for a return to contract formalism, in which the "four corners of the contract" are enforced.
Anyone who does not like what happens as a result of strictly enforcing the contract is told, "You should have thought of that before you signed on the dotted line."
Setting aside the rank hypocrisy of Cruz's sudden conversion to modernism, what exactly would Cruz's argument entail? He might say that the "unforeseeability" doctrine excuses him from performing, because no one could possibly have predicted that he would end up being expected to endorse a candidate who would, say, tweet unflattering pictures or Cruz's wife and threaten to "spill the beans" about some imagined scandal that Trump claims to have dug up.
But was Trump's behavior unforeseeable (I ask rhetorically)? If not, Cruz might try to invoke the doctrine of "good faith and fair dealing," which is part of the contract law of almost every state in the union (with Mississippi still the lone holdout, as far as I know).
When one party enters into a contract with another, the law requires both sides to act in good faith, which means not deliberately frustrating the purpose of the contract to gain an advantage after the fact.
Which brings us to Trump's approach to contracts. Cruz is a lawyer, and Trump is not. Even so, Trump's entire persona is built upon his (demonstrably false) claims to be a master deal maker, and his supposed ability to negotiate savvy deals.
Trump's approach to contract law, however, has been to negotiate deals and then to try to renegotiate them after the fact, when he is in a more advantageous position. The signed document is only the beginning of the story.
Trump, after all, has been involved in thousands of lawsuits, including suits brought against him by small businesspeople who have never been paid for their work. Trump's explanation for all of these disputes is that he has refused to pay people for shoddy work.
His is the classic defense: "They didn't perform their side of the deal, so now I don't have to perform mine."
The contracts that Trump signed, of course, are subject to the requirement of good faith and fair dealing. In construction contracts, there is also standard language regarding "good and workmanlike" efforts and so on. No contract can be governed by one party's opportunistic claim that the other party's actions are not good enough.
Yet Trump's evidence for non- or poor performance seems always to boil down to, "Well, I'm not satisfied, so I'm not paying. Sue me." Because he knows that his opponents—partly because he is refusing to pay them money owed—have no money to hire lawyers and wait years for justice, he frequently gets away with breaching his contracts.
The irony, of course, is that the pledge was originally designed as a public relations stunt to try to force Trump to forsake a third-party run. Last year, Republicans worried that he would flame out in the primaries (or even before the primaries began) and then self-fund a spoiler campaign in this year's general election.
After initially trying to ignore the demand to sign the pledge, Trump finally agreed to sign. Even at that time, however, no one thought that Trump would take it seriously. The best that they could do is to use Trump's signature to try to shame him (Good luck with that!) or to undermine his support among his supporters (who seem willing to ignore much worse than some broken promises).
In Trump, we have a serial contract breacher who is now excoriating his opponent for breaching an unenforceable contract.
In Cruz, we have a man who joined in a doomed effort to prevent Trump from taking power, with Cruz now opportunistically invoking doctrines that he would otherwise mock, in the service of his own political ambitions.
On the sideline, we have a recent Republican nominee, John McCain, who never even signed the pledge, and who has an even better reason to say that Trump's personal attacks nullify any loyalty that McCain might owe to his party's nominee.
McCain has, however, apparently decided that his immediate political future depends on sticking uncomfortably with Trump, while Cruz's longer-term plans require him to disrespect Trump as flamboyantly as possible.
And so ended yet another week in the Republicans' version of the Hunger Games.
Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute, Monash University, Melbourne, Australia. He teaches tax law, tax policy, contracts and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.