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.