Fundamental Fairness, and Voting For Trump

There is a joke which is actually semi-serious advice among lawyers: 

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”

It is first attributed in this form to the poet Carl Sandburg, but likely long predates him.

I have heard something similar argued about “fundamental fairness,” that it is a doctrine that is argued by an attorney when she has nothing better to put forward for her client; a pleading that “Your honor, don’t you think that this just seems more just?” That is an exaggeration, certainly.  Such appeals, in aggregate more than individually, are persuasive as culture changes, and have likely improved justice in the long run.  Just because it is often abused does not mean that there is nothing to it.  Wolves don’t hide in wolves’ clothing, I used to say.  What would be the point of that?  They hide in sheep’s clothing because there is actual innocence in the world.

So it is a suspect approach, but not wholly without merit.  I have at least four attorneys who are regular readers, and they are free to correct me on the point. I will leapfrog in this discussion a bit, so if I seem to be suddenly veering off course, please understand. 

I have said for years that the most important consideration in the voting booth is Which of these candidates will be the better president/senator/mayor/county attorney over the next few years? I have strenuously argued at times that nothing else matters, and we should shove other considerations back from intruding on our choice. Yet I find that in the current election (teaser: keep reading) I am deviating from my own rule. I have been challenged recently and find in myself that another consideration is indeed intruding on my decision: Fundamental Fairness. Well, that’s sad to admit, as I have already noted it’s a bit sketchy.  

When Trump was elected, there were immediate fireworks about Investigations.  There were many things that Trump and his people clearly needed to be investigated for, mostly involving Russia.  That there were serious questions about Hillary Clinton’s email and private server and the hacking of the DNC by the Russians were put aside.  Remember that Donald Trump himself, in this interest of national unity and not continuing a revenge cycle, very forcefully declined to have the DOJ investigate her.  After all, it looks bad for a country to be using the forces of government to investigate the political opposition.  It’s the sort of thing that used to happen in Eastern Europe and Latin America, right?  Banana republic stuff. I still think he made the right choice, making the grand, showy magnanimous gesture. That’s a Trumpian move.

Fat lot of good it did him, though.

We now know there was no reciprocation.  Obama insisted Trump’s campaign was not spied on, but it was, and he knew it.  He also knew since July (and it seems that Biden was at least in the room) that Trump and his campaign were under investigation by the FBI for possible Russian interference, and seemingly no one said “Wait, this looks very bad.  Shouldn’t we be extra careful that all this is done according to the highest possible standards?” It has taken years to sort out, largely because Michael Flynn got a new lawyer.  She isn’t trying to save American democracy, she is working for a specific client, but it is worth noting that most of this would never have come out, and the whole thing buried if she had not been hired. Just enough freed-up info to highlight that Mueller had done a terrible job and hadn’t even paid much attention to the report, which allowed Barr to put Dunham on the investigatory trail. (Yes, it’s more complicated than that, but that is a strong link.)

We now have a new scandal arising, following a similar pattern of denial and accusation of smear and conspiracy theorising, but Wall Street Journal, National Review, and Mercatus Center, none off them Trump-supporters, are beginning to confirm important pieces.The Department of Justice has started an investigation.

What will happen to that investigation if Biden is elected?  What will happen to the Dunham investigation? What will happen to all the investigations into Democrats? If everyone gets away with everything, what happens next?  Are you envisioning mass repentance?


I work for a government institution.  I suppose that makes me a swamp creature, but I comfort myself with the knowledge that New Hampshire is not only a small swamp, but because of a long tradition of lack of corruption, it is a shallow swamp. At my hospital we have the ability to hold people involuntarily if they are dangerous and mentally ill.  In more extreme circumstances, we can administer psychiatric medication against someone’s will.  While it is ultimately courts that decide both these things, it is our information that the courts rely on. If we were to to use false information to accomplish that, it would be an horrific abuse of government power.

I have seen many bad things occur over the years, of patients held too long or let go too quickly because of incompetence or poor judgement.  I have seen patients deprived of rights on smaller matters, such as being put in seclusion or receiving emergency medicine when I thought the evidence was thin, inadequate and staff anger (usually following an assault) influenced decisions too much.  I even participated in actions in my early years at the hospital that I now look back on and say “Y’know, that was abusive. We should not have done that.  I should have said something.  I should not have participated.”

But I have never in my entire career heard someone suggest that we should make stuff up or exaggerate it and try to fool a court, nor have I known any staff member who I suspected of doing such a thing secretly, of lying to get a patient involuntarily committed or subject to forced medication. I have read that such things used to happen in other places, and these always struck me as a great horror if true. To use the power of government justice against individuals unjustly is one of the worst things that can happen in a nation. It is banana republic stuff.  It is Soviet stuff.

Relatedly, I do know of laws that we played along the edges of in the past. I have seen the excuse-making and self-justification, and know that once human beings have broken the seal on misbehavior, it is easier the next time, and eventually just becomes the way everyone does business.  Speed limits are an excellent example, as the entire culture now fully rationalises breaking them.


One step farther down into the pit. There is a special evil to one political group in a country abusing the powers of government against individuals for their own political ends. Obama did this more in negative fashion, simply refusing to give information.  If there is no investigation, there is no scandal.  Presto!  A scandal-free administration that we are only now able to get information on, years later. It started as far back as the protection of ex NBA player and ongoing sexual predator Kevin Johnson (at the link) right to the earliest days of the Obama presidency. For no sensible reason, the White House simply withheld the information. It was Nixon squared.

That the investigations will cease, and the perpetrators encouraged to go back at it again, this time knowing how to better cover their tracks strikes me as one of the worst possible outcomes of the presidential election.  So that goes against my policy, stated above, that the only thing that matters is who will make the better office-holder at any level.  Yes, keeping investigations going or cancelling them is part of “being a good president,” so I suppose I am technically still in range. But I know that is not fully the case. This is not foreign policy or tax policy.  It is a function of the executive branch to make such decisions, true. But it is not what we usually mean when we think of “doing a good job.”

Let me further undermine my own argument.  As to the results of the investigations, the comments sections of conservative sites over the last twenty years, especially the last four, are littered with “Let me know when it looks like someone is going to jail.  We’ve heard this too many times before.” Even if the investigations go forward, they may produce little. A lot of perpetrators are going to skate, whatever happens, if history is any guide.

Yet in the end, I think keeping the investigations going is reason in and of itself, to re-elect Donald Trump. I would take no comfort in reading the expert analysis by Andy McCarthy for the next four years of exactly how “what the Biden Administration is doing is illegal, but maybe the current investigators will do the right thing anyway.” McCarthy is tremendous, but such cold comfort is not for me. There is a cognitive dissonance over at National Review that this is what would happen. (Please, no comments that you don’t like NR. I already know that.)

In addition to the clearly identified reasons we give for our voting, people on all sides vote largely for whoever they think will do better at preserving (or initiating) virtues close to our heart. We think a candidate will do what is better for women, or for Hispanics, or for Christians as a group, but we also apply that to single virtues – a Senator who will work for peace, or be good against racism, or encourage freedom, or promote safety or education.  These are sometimes more impressionistic than solidly evidenced, but they are of great importance to us.

So this one’s mine.  People should not be able to use the powers of government to profit, to punish their enemies, or to protect their guilty friends and family. The short-term consequences are not that bad, really.  The long-term consequences are the destruction of the nation.

12 thoughts on “Fundamental Fairness, and Voting For Trump”

  1. I think Trump was naive. He thought as President the executive branch worked for him. I don’t think being CEO of his own company prepared him for a situation where an extremely powerful agency that allegedly works “for” him was actually trying to destroy him, and he didn’t realize it until too late.
    I know I was naive. I honestly thought when he made his tweet about his phone being tapped, that if it was proven to be true that there would be a severe reckoning for spying on domestic political opponents. I guess I took all the anti-Patriot-Act stuff seriously. Silly me.
    There is one figure who needs to tell his story publicly, and that is Admiral Mike Rogers. He’s the one who supposedly shut down the illegitimate use of the NSA to spy on the Trump campaign, and forced them to go to the FISA court, and the one who went to warn Trump after the election about what was going on. Unfortunately one has to think that he, like Barr and so many others, feels obligated to protect the current system, rather than let the light shine in on its horrific abuses.
    I don’t see any possible decent ending at this point. The federal government is fundamentally corrupt, and is beyond redemption.

  2. Brian, here’s a news flash for you: It’s always been like this. You just weren’t paying attention.

    Did the fact that J. Edgar Hoover managed to have a fifty-odd year career running the FBI not strike you as a little, shall we say, odd? Can you think of another Federal agency whose head managed that sort of longevity, through multiple presidencies from both parties? How do you suppose he managed that? How much of the history you were taught in school was at all accurate and/or complete, given that set of facts? Who all were blackmailed by Hoover, and to what end? It’s fairly obvious that he had something on a lot of somebodies, or he’d have been out on his ass the minute FDR was dead.

    That’s just one example of one agency. Who do you suppose was behind JFK being killed, and Oswald being eliminated as a potential source of testimony? Time was, I dismissed any “conspiracy theories” as being wild-ass BS, but the last four years have led me to conclude that such a conspiracy by government agencies might not be that incredible. After all, who’s stood up to testify to the amount of illegal and immoral BS that has been going on, with regards to going after Trump? Anyone? Anyone at all…? You know damn good and well that there were people “in the know” about all that crap, because even if they compartmentalized, there were still low-level sorts who had to be aware. None of them came forward. Same thing with regards to all the other crap with the Obama administration–Who blew the whistle on the whole Fast and Furious crapfest? When did they do it? Oh, that’s right–Not until one of their own was killed because of it. Only then did they develop scruples.

    No, this crap has been going on for a long, long time. It only seems new to you because you’re just now having your nose rubbed in it, and now you’re paying attention. Frankly, I’ve always had my suspicions, but who the hell really wants to believe this crap about their own country? I know I’ve been in denial, for years, despite having had first-hand experience of some of their chicanery.

    I don’t know whether to be comforted or outraged at these conclusions, but the raw facts are there: This ain’t new.

  3. }}} “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”

    Actually, it’s a little bit more witty in the original. Something along these lines:

    “If The Law is with you, pound on The Law. If The Facts are with you, pound on The Facts. If neither is with you, pound on The Table

  4. Kirk: The fact that the FBI headquarters in DC is named after Hoover is probably a pretty good tell that they’re not really pretending to hide it…
    We all “know” he was blackmailing everyone in DC, which is why it’s so dumb that anyone believes the absurd stories about him being gay/cross-dresser, etc.
    I don’t believe the CIA had anything to do with Kennedy being shot, because that plan actually worked…
    Who would have believed even a decade ago that the following would be conservative positions, and opposed by liberals–end Afghanistan now, no involvement in civil wars in Syria, dismantle federal law enforcement/intelligence agencies, no surveillance of domestic political campaigns, etc.

  5. AVI,

    You don’t have to go very far from home to see the end product. Both Massachusetts and NY State are already there. NY is worse with both Democrats and Republicans as crooked as they come. Angry Andy Cuomo has cycled through a couple of self-restricting ethics commissions. For MA, I tell people not familiar with Boston politics is that it is like Louisiana with Harvard. Any state that would put Billy Bulger in a position of importance is already lost. The occasional GOP governors like Romney or Weld have a strict unwritten charter that they can’t go too far in the necessary political clean ups.

  6. This is a nicely put argument; without Trump, I can’t imagine any “secrets” will come out, let alone anyone be punished except the innocent.
    I still believe that under Obama/Biden/Clinton/Kerry we did see levels of corruption that were greater than before – or at least than the main run of administrations. (The self-righteousness doesn’t help.)
    This is great – though all the really great arguments and rhetoric and energy of the last few days seems to be assuming this is a normal election and the dye hasn’t already been cast in early voting. A friend who voted early is just not listening to much of this – she says it is relaxing not to think about for a while. Well, yes – and I know she voted pretty much straight Republican – but she’s missing some of the best thinking – like AVI’s. Maybe Trump is alive in that box and maybe his presidency is already dead.

  7. well I went to school with the son of the one who said he saw oswald with a company contact, more likely then not he was recruited by two cuban intelligence operatives, abrahantes and escalante, one ended up interior minister the other domestic intelligence, of course the one that was tasked with the poison pen, rolando cubela, was likely a double agent, who flipped at the right moment,

  8. It’s always been like this.

    Hmmm, I disagree.

    No, it’s worse. At least Hoover was anti-communist- and our corrupt political establishment in days of yore dumped Henry Wallace in favor of Harry Truman because they figured out Wallace was a either a dupe or a traitor.

    Now, they’d keep him on the ticket and cover it up, like they cover up for the Biden crime syndicate.

    That’s not the same.

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