Author: David Allen Green

Pardons should be how mercy complements justice – but what happens when pardons undermine justice?

26th November 2020

There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.

The model is as follows:

– justice is (in part) about the appropriate application of general rules to particular cases;

– the application of justice in a particular case may result in an onerous sanction against an individual;

– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;

– and so an exercise of mercy will release that person from that sanction.

As such, mercy is a complement to justice, not a replacement for it.

A person may have done wrong, but they need not suffer for it.

The sin is still hated, but there is love for the sinner.

This, at least, is the model.

*

The usual and best known means of exercising mercy is by way of a pardon.

The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.

In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).

*

Pardons are curious things.

Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.

(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)

When applied to legal matters, a pardon is about forgiveness.

It is (or should be) about the sentence, not the offence.

As such it is (or should be) about mercy rather than justice.

And so here we come to a conceptual issue about pardons.

A pardon presupposes guilt.

*

A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.

A pardon does not (or should not) expunge the offence.

This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.

To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness. 

And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven. 

So should there be pardons for convictions when the law itself is wrong or unjust?

Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?

(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)

And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.

Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.

*

Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).

But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.

Wrongful, controversial presidential pardons did not start with President Trump.

For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.

And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.

The Nixon pardon was an odd thing from a legal perspective – you can read the text here.

The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.

The ‘may have committed’ is remarkable: it in effect created retrospective immunity.

Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.

No specific offences were mentioned.

No guilt was admitted.

The Nixon pardon is an extraordinary legal document.

And it can barely be called a ‘pardon’ in any meaningful way.

*

The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.

And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.

Trump seems to want to use pardons as devices to place specific people above or beyond the law.

There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.

(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)

*

The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.

One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.

As such mercy ceases to complement justice but subverts justice instead.

Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.

And we may about to see this in action with Trump in the United States.

What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.

Trump may be about to use the power of mercy to assault justice itself.

**

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Why the phrase ‘to enshrine in law’ is a fraudulent device

25th November 2020

Every so often the demand is made by a politician or someone in the media that a thing be ‘enshrined in law’.

The impression that they wish to promote is of absolute seriousness – that the thing will somehow be set out in law in a way that will ensure its preservation and enduring respect.

A super-duper way of using law.

But this is an untrue and misleading impression.

In the constitution of the United Kingdom, by reason of the doctrine of parliamentary supremacy, there is not a thing that can be ‘enshrined’ in law.

A thing set out in an Act of Parliament can be repealed and amended by another Act of Parliament.

Or a way can be found of frustrating or circumventing the statutory provision.

And often there is not even a need to repeal or amend, or to frustrate or circumvent, because there is no real enforcement mechanism for the enshrined thing.

The notion that a thing can be ‘enshrined in law’ is a fraud.

*

To take a topical example, the International Development (Official Development Assistance Target) Act 2015 provides for a statutory target of 0.7% of gross national income is sent on overseas aid.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Looks impressive.

But.

But what section 1 provides is weak even on the face of the Act, as section 2(3) provides wide exceptions:

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

And if an exception is invoked, the consequence of not meeting the target is that the government must try to meet the target next year, and so on.

Yet even these exceptions do not matter…

…as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

The duty supposedly ‘enshrined in law’ expressly has no legal effect.

‘Enshrined not in law’ would be more accurate. 

Yet politician after politician, and activist after activist, will parrot the line that the 0.7% spending commitment is ‘enshrined in law’ as if that actually means something in any legal sense.

(A similar thing happened with the various attempts to ‘enshrine’ in law the date of the departure of the United Kingdom from the European Union.)

*

A possible defence of the term ‘enshrine in law’ may be that it is a mere turn-of-phrase – verbal filler for those in politics and the media.

But this defence does not wash.

The term is invariably used to raise false expectations as to whether a thing will have enhanced legal protection – and as such it is a fraudulent device, as it will not.

And it leads to statutes being enacted, such as the the International Development (Official Development Assistance Target) Act 2015 that are nothing other than glorified press releases – and this is a misuse, even an abuse, of law.

‘To enshrine in law’ is a phrase which usually means the law is to be used for a non-legal purpose so as to mislead voters and readers (or listeners or viewers, depending on the medium).

*

By reason of the doctrine of parliamentary supremacy, it is impossible to ‘enshrine’ anything in law in any meaningful way.

Entrenchment is not available.

And by reason of parliamentary drafting, it will often be that the supposedly enshrined thing has no legal consequence.

There should therefore be a general prohibition on politicians and those in the media misleading others with the fraudulent device of saying a thing can be ‘enshrined’ in law…

…if there was only some way of entrenching such a ban.

**

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Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

As long as the States duly certify their votes, and the Electoral College then duly votes in accordance with those certifications, and Congress then duly accepts the Electoral College result, there is little Biden really needs to do so as to become President of the United States on 20 January 2021.

Unless something extraordinary happens, Donald Trump will cease to become President on 20th January 2021 by automatic operation of the Constitution of the United States.

Process is his friend.

There is, of course, still litigation and political pressure from the Trump campaign.

(And it is testament to the lack of confidence many have in the integrity and independence of the currently composed Supreme Court of the United States that many can easily imagine at least two or three of the Justices voting in favour of the side of Trump in any election case before that court, regardless of the merits of that case.)

None of the current litigation, however, really adds up.

Indeed, the lawyering in some of the cases brought by the Trump campaign has been unimpressive.

And even if each of these cases are taken at their highest, it is not conceivable that it would ‘flip’ the result in a single State, let alone the entire presidential election.

Understandably, many are still anxious as to whether Trump will really go, and are concerned that some grand litigation trick may keep him in the White House after 20 January 2021.

After all, many strange things have happened in the United States (and the United Kingdom) since 2016.

But here it looks like process will prevail.

*

Process is the enemy – the negation – of the disruptive approach to politics of Trump and Bannon in the United States and of Johnson and Cummings in the United Kingdom.

That approach to politics prioritises mobilising a political base so as to enable those in political power to govern without checks and balances.

And as such, both politics and policy becomes a sequence of gestures, expediences and contrivances.

Process is an alien concept to this approach of constant disruption.

*

Take, for example, Brexit.

In approaching the negotiations of the exit agreement and then of the subsequent relationship on trade, the European Union has been dull, methodical, and relentless.

The United Kingdom, on the other hand, has constantly sought to rely on bluster and bullying, but at each stage has been at a disadvantage.

Johnson and others prioritised playing to their political and media constituencies over engaging properly in a structured negotiation process.

They have received claps and cheers, but those claps and cheers have quickly faded and are becoming less loud and enthusiastic each time.

Process has been the friend of the European Union over Brexit, just as process is now the friend of Biden in the United States.

This is not to say that process was always going to favour the European Union (even though the Article 50 procedure is rigged against the departing Member State).

The United Kingdom can also be rather good at the politics of process, when its political leaders take process seriously.

But throughout Brexit, a distrust of ‘Remoaner’ expertise and experience meant that United Kingdom did not have the benefit of those who were the match to the procedural politicians of the European Union.

Think of Ivan Rogers, among many others.

*

The populist nationalist authoritarian politics of Trump and Johnson, and of Bannon and Cummings, has shaken many liberals and constitutionalists.

Disapproval and tuttery has no effect; conventions are disregarded; inconvenient laws are circumvented and even sometimes broken.

It is akin to a wild animal loose in a village.

The unpredictability and noise and damage is unwelcome.

But, just as there are advantages for those who promote this destabilising approach to politics, there are also weaknesses.

And one of those weaknesses is that it cannot easily deal with process, if that process survives the attempts to disrupt it.

But.

The scary thing is when populist nationalist authoritarians master the political arts of process, rather than the lesser political arts of disruption.

We are (relatively) fortunate: Trump will soon no longer be in office; Bannon and Cummings are both no longer in central political positions; and Johnson now seems politically weak.

The next wave of populist nationalist authoritarianism in the United States and the United Kingdom may be harder to dislodge.

**

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It has never been easier to mass-shame politicians, yet never have politicians seemed so shameless: the constitutional implications of a modern political paradox

23rd November 2020

The internet and modern communications technology mean that it has never been easier to to mass shame those with political power.

Only twenty-five or so years ago it was virtually impossible for any person to publish anything critical about politicians without going through a traditional ‘gate keeper’ – you could write a letter to a newspaper, send a manuscript to a publishing house, or telephone a radio or television show.

But it was almost always a decision of somebody else if your critical views got wider circulation.

Determined people could, of course, publish their own pamphlets, or publish a book through a ‘vanity press’, or start their own pirate radio station in the English channel.

Such eccentricity, however, was relatively rare.

Now anyone with everyday electronic devices can publish their views to the world.

It has been an extraordinary development in the history of communications, akin in its significance to the developments of writing and then of printing.

(And a development the implications of which have perhaps not been fully worked through socially, culturally, or legally.)

But.

Alongside this development seems to have been an opposite and equal political reaction.

For, although it has never been easier to mass-shame those with political power, it appears that those with political power have never been so shameless.

As long as their (minority) political blocs are mobilised and committed, various populist politicians – from Trump and Bannon in the United States to Johnson, Farage and Cummings in the United Kingdom, and others elsewhere – do not care that there is mass online criticism of their positions.

Indeed, the loud ‘liberal’ reaction is taken to validate and enhance their political appeals to their bases.

And it may be that this shamelessness is affecting constitutional practice.

Until fairly recently constitutional practice in the United Kingdom and the United States, and perhaps elsewhere, rested on constitutional conventions.

Such conventions do not have the force of law and so cannot be litigated.

Instead, the conventions were followed partly because their overall utility was considered obvious (any government minister who might have flouted a convention would realise she or he may be in opposition again one day).

But conventions were also followed because a failure to do so would lead to significant political disapproval.

Others would ‘tut’.

And in a small self-contained political world, such tuttery mattered.

But now, when there is constant appeals to political bases, such tuttery does not matter at all.

The Bannons and the Cummings of the political worlds do not care about disapproval of political elites.

Nor do the Trumps and the Johnsons.

And so we have one paradox of modern politics: never have politicians been more accountable on an everyday basis for their actions, and never have they seemed so indifferent to accountability.

This, one hopes, may be a short-term thing: the opportunism of a certain group of political charlatans at a particular time.

Perhaps constitutionalism and respect for constitutional norms will reassert itself after this rush of heady populism.

Perhaps things may get back to normal.

Perhaps.

But, if not, we need to work out better ways of enforcing constitutionalism and the respect for constitutional norms than tutting.

For even with the amplification of internet and modern communications technology, mere mass-tuttery will not be sufficient. 

**

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The Pennsylvanian court dismisses the Trump law suit ‘with prejudice’

22nd November 2020

The federal court in Pennsylvania has dismissed the claim by the lawyers for President Donald Trump ‘with prejudice’ (a delightful legal phrase). 

The judgment is well worth reading and there are certain passages that will stand out. In particular these two paragraphs are striking:

“Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution. “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.” “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”

“Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief.”

And this footnote is a thing of utter beauty:

“Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.”

*

Of course, the Trump campaign has little serious legal strategy in all this.

The intention of the Trump campaign appears to be two-fold.

First, to get a case somehow someway before the Supreme Court where, presumably with the magic of partisanship, the conservative justices will fashion a win for Trump.

And second, to make as much political and media noise as possible so as to maintain the fiction that Trump was robbed of an election result.

I am not an American lawyer, but it is hard to see how the Trump team can get much further with their legal claims.

Unlike Bush v Gore there is no serious legal issue outstanding in respect of an ongoing count/recount.

*

Yet as a consequence of the current tactics of the Trump campaign, there will be a lingering and destabilising sense among Trump supporters of illegitimacy over the presidential election.

No court judgment can address, still less cure, such a political reaction.

Trump’s hyper-partisan supporters will no doubt dismiss the judgment, with their own prejudice (in the non-legal sense).

That is unfortunate, and it will be a political problem that will not go away easily.

But any court can only do so much.

And here it is heartening that the court has done what it can.

The legal function has been performed, and what is left is now politics.

*

One final observation can be fairly made on all this.

For many years conservatives have complained of ‘activist’ and ‘interventionist’ judges and they have (rhetorically, at least) sided with ‘the people’ against the courts.

And now those same conservatives are demanding for active judicial intervention against the people, to the extent that thousands if not millions would be suddenly disenfranchised by court orders.

This is a paradox, if not a contradiction.

Do conservatives want an ‘activist’ and ‘interventionist’ judiciary or not?

They should make their minds up.

**

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The significance of the resignation of Sir Alex Allan

21st November 2020

Yesterday Sir Alex Allan, the Prime Minister’s independent adviser on the Ministerial Code, resigned.

His statement was succinct to the point of curtness:

“I recognise that it is for the Prime Minister to make a judgement on whether actions by a Minister amount to a breach of the Ministerial Code. But I feel that it is right that I should now resign from my position as the Prime Minister’s independent adviser on the Code.”

The first sentence is dressed-up, but it is nothing more than a statement of fact; only the second sentence has any import.

The real reason for the resignation is that the Prime Minister disregarded the view of Allan that the Home Secretary was in breach of the Ministerial Code. 

This resignation, in turn, follows the resignation in September of Sir Jonathan Jones as the Treasury Solicitor, the government’s senior legal official.

The resignation of Jones was also because of a breach, in that case that the United Kingdom government was deliberately intending to break the law.

And that resignation, in turn, followed the curious incident in 2019 where no government official was willing to sign a witness statement, on pain of perjury, as to the government’s true reasons for the five week prorogation of parliament.

*

These incidents are accumulating.

Each example is, in its own way, significant – in that it signifies a particular breakdown of the machinery of government.

And taken together they indicate a trend – a government that is indifferent to constitutional norms and conventions and which sees self-restraints as mere inconveniences to dismiss.

Alongside these examples, of course, we have the government threatening both the independence of the judiciary and the efficacy of judicial review.

This is a government that wants to be free of an impartial civil service and independent judiciary and seeks to legislate as much as possible by decree.

This is what I called the ‘Executive Power Project’ (in gentle mockery of the ‘Judicial Power Project’ – a group who, quite seriously, contend that judicial power is the real problem of our age).

So the Allan resignation shows us nothing new, but is a further illustration of what can already be seen as a wider problem.

The government has collapsed into hyper-partisanship, and it is ready to negate every conventional principle and even to break the law, and wants to remove anything that can say ‘no’.

This, of course,  is the politics of hubris.

Yet the hubris of this government never seems to meet its nemesis.

The government still appears popular and there is no reason to believe another general election would return a different result to that of just under a year ago.

The government is even getting its excuses in early for the effect of the Brexit transition period ending on 31 December 2020, whether there is a deal or not.

The Allan resignation signifies what is wrong about this government and its attitude to constitutional propriety – but we already have a number of such signifiers.

And so the Allan resignation also signifies that the government believes it can keep on getting away with these constitutional trespasses – and the worrying thing is that the government is probably right.

**

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Australia shows the United Kingdom there is another way of being accountable for war crimes

20th November 2020

The United Kingdom government is currently making it (even) more difficult to prosecute its armed services for historic war crimes.

On this I did a video essay for the Financial Times (written and presented by me, produced by the estimable Tom Hannen).

The United Kingdom and war crimes (and torture in particular) is a depressing subject – from Kenya and Northern Ireland to Iraq and Afghanistan, there are cover-ups and other attempts to avoid scrutiny.

But there are other, more refreshing approaches to official accountability.

The Australian government has now published a report into war crimes in Afghanistan by its own special forces.

The report of by Paul Brereton, the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report is an extraordinary and highly important document.

The report is unflinching.

And in response to the report, the Australian government has already taken concrete steps.

*

War crimes happen, torture happens – and war crimes and torture can be committed by all sides, not just the ‘baddies’.

This is the nasty truth about conflict and human nature.

The question is about what to do about it when it happens.

One approach comprises official cover-ups, deflections, and smearing those seeking justice and accountability.

This is a misguided, short-term approach.

It means there is a sense of getting away with it, of permissiveness – and, in time, it means the armed services will lose valuable legitimacy when dealing with local populations.

The Australian approach is far harder, but a far better one.

The United Kingdom – as it did with torture in Kenya and Northern Ireland – would much prefer to pretend that these things never happen here.

Or, if there is acceptance that war crimes and torture took place, then there is then a shruggy ‘well, what is wrong with this?’  and ‘so what?’ and this dismissive attitude will get easy nods from political and media supporters.

Yet everything is wrong with war crimes and torture, and high standards matter and make a difference.

And the Australians seem to realise this, but the United Kingdom does not.

**

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Why constitutional law should not be exciting

19th November 2020

Constitutional law, at least in the United States and the United Kingdom, is currently exciting.

And this is a bad thing, as constitutional law should not be exciting.

Constitutional law should be dull.

*

At least that is what I have said, many times.

For example, here.

And also many times on Twitter.

It is an aphorism of which I am fairly proud.

But is the import of it actually true?

Should constitutional law be boring?

And if so, why?

*

Yesterday on Twitter I was implicitly challenged on this.

https://twitter.com/OlympedeGouges/status/1329012413828575234

The tweeter had a good point.

Litigation can lead to great, wonderful, heartening victories for those without rights.

Think of the great anti-segregation and the pro-abortion cases in the United States, or the welcome sequence of rulings on LGBT issues at the European Court of Human Rights at Strasbourg.

Each of these results rightly make any liberal person want to clap and cheer.

But.

There are serious problems if constitutional law is exciting.

*

First, litigation is risky, expensive and uncertain.

There is a certain frame of mind that has it that ‘common law rights’ that have come through ‘actual cases’ are to be preferred to those which are set out in a statute or other legal instrument.

(I used to hold such a view myself.)

But this view is complacent and reeks of privilege.

Few, if any, people are in a position to bring cases.

Litigation is expensive and takes up sometimes years of your life.

Litigation is inherently risky and, at least in England, you are often at peril of having to pay the other side’s costs.

And litigation is unpredictable – you can have a substantially strong case and still lose on some technicality that one judge may uphold and which another judge may not have done.

To say rights should rest entirely on case law is, in fact, to say little useful at all.

*

The second problem is that rights based on case law can be precarious.

What is given by a court can usually be taken away by a court.

For example, Roe v Wade is one of the most significant cases of modern times.

But it is (and has long been) just one Supreme Court case from being reversed and, if it is reversed, then the right to abortion based on that case is likely to be adversely affected too.

The right would be far safer if it was enacted in legislation, or embodied in a constitutional amendment.

Perhaps such legislation is unrealistic, and a Supreme Court judgment is the best one can have.

Perhaps.

But is still true that case law, and the excitement of case law, is not the ideal basis for such a fundamental right, as the right to have an abortion.

The right should be in legislation, beyond the risk of a sudden court reversal.

*

The third problem is that too much constitutional case law implies an unstable political system.

Constitutional law should set out the parameters of acceptable political activity with an agreed process for what happens when elements of a political system are in tension.

But if those parameters themselves are casually disregarded or continuously contested then that destabilises the political system.

Since 2016, both the United States and United Kingdom have had people in the executive who care neither for conventions nor for the disapproval of others for breaching those conventions.

Donald Trump and  Dominic Cummings both, in their different ways, see supposed constitutional restraints as things to discard and to sneer at.

This, of course, is a short-term view – the quick thrills of the vandal and the hooligan.

In the medium- and longer-term those with power need the authority which comes from settled, consistent and predictable political practice.

Here, authority can be imagined as being on one end of a see-saw, with autocracy on the other.

Any fool with power can be autocratic.

But such personal rules are usually erratic and rarely sustainable.

This is why wise rulers work through – and thereby develop – legislative assemblies, systems of justice, and bureaucracies.

Not because they are forced to, and have such things imposed upon them, but because they realise it makes peaceful and stable government far easier.

Constitutions change over time – even codified constitutions – but if there is constant intensity as to constitutional matters then this indicates a lack of consensus as to the parameters of a political system.

And that, in turn, indicates breakdowns in what matters are rightly in the realm of everyday politics: how those with power should be held to account, what laws should be made, what are the priorities for the executive, what should be the policies that should be implemented, and so on.

In the United States and the United Kingdom you can see the contradictions and polarisations in everyday political matters, with overbearing partisanship and constant hostility and confrontation.

This is not good.

And this is why constitutional excitement is a symptom of wider political failure.

*

Personally, I rather enjoy constitutional excitement – with all the sardonic glee of a Brummie Wednesday Addams (or should that be Wednesbury Addams?).

 

Some people, as a butler once said to a batman, like to see the world burn.

 

But it really is not good for a healthy political system.

Politics should be exciting, but constitutional law should not be.

Constitutional law should be dull.

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A bad day in court for Rudolph Giuliani – the possible significance of his inability to answer one important question from the judge

18th November 2020

Yesterday Rudolph Giuliani appeared in a Pennsylvania court, on behalf of the Trump campaign, seeking to somehow challenge the presidential election result for that state.

According to the superb live-tweeting of that hearing by various American lawyers and journalists, it would appear that day in court did not go well for Giuliani.

The law suit itself has not yet been dismissed – no doubt because any sensible judge will want in such a case to have robust reasoning in their judgment, showing they have both addressed every arguable legal point and weighed each piece of supposed evidence.

(This is in turn because an inevitable (attempt to) appeal is part of the process.)

But what I want to focus on with this post is one painful – indeed excruciating – reported exchange between the judge and Giuliani.

(Click into those tweets to see them as part of exemplary threads of legal reportage.)

Here Giuliani was plainly bluffing.

He had no idea what level of scrutiny should be applied, and so he tried to wing it.

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It is a predicament that any lawyer with courtroom experience will recognise.

In England, for example, many lawyers will have their own story about when they are instructed to go to court to apply for the ‘usual order’ only to be asked by the judge as to what order that might be and the hapless lawyer did not know.

It is an experience that should only happen once to a lawyer, if it happens at at all.

This is because the basic requirements of any court room advocacy are to know (a) exactly what order or other remedy you are asking for and (b) the applicable test to be applied by the court in granting that order or other remedy.

If you know nothing else, that is what you should always know before you open your mouth as an advocate.

In this case, Giuliani – an experienced former prosecutor, and (it would seem) the personal lawyer of the President of the United States – did not actually know the applicable test to be applied by the court in considering what he and his client were asking for.

In this particular case – what was the level of scrutiny to be applied by the court?

His inability to answer this is the sort of awkward pratfall that will cause any litigator or advocate to wince.

But what explains this inability?

Especially that, for all his many apparent political faults, Giuliani is an experienced lawyer and not a stupid person.

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In the circumstances, there seems two plausible explanations.

The first is that there seems to be no sincere interest by Giuliani and other Trump lawyers in the litigation process as an end in itself.

The only sense the litigation makes is that it is for a non-litigation goal, to cause delay and disruption and to discredit the electoral process.

If so then filing a suit – any suit – will do and it would not matter much what the applicable law would be.

The second, which is related to the first, is that Giuliani came into the case very late, after a number of previous lawyers quit.

He simply did not have enough time to prepare or to be adequately briefed.

And why did the previous lawyers quit?

That is an interesting question, the answer to which we may never get a because of client confidentiality and attorney-client privilege.

But the most plausible answer – as I set out in this Twitter thread – is that the previous lawyers realised that they could not put forward their client’s case in a way that was consistent with their duties to the court.

https://twitter.com/davidallengreen/status/1328614443941589000

As I also set out in that thread, all the other possible explanations do not seem to add up to what actually happened.

If this is the case, then only a lawyer unwilling or unable to see the problems with making a case for the requested remedy would be able to proceed.

And Giuliani, unburdened by knowing anything about the substance of the case that needed to be argued, would have been such a lawyer.

So, if this is correct, this is why yesterday Giuliani had such a bad day in court.

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How Donald Trump is being perfectly rational in refusing to concede – if you adopt his assumptions

17th November 2020

The ongoing refusal by Donald Trump to concede that he has lost the presidency election is dangerous and profoundly undemocratic.

It threatens the prospect of a peaceful transition of power, and it is delaying the incoming administration from being able to prepare for dealing with the coronavirus pandemic and other problems.

There is nothing to be said for this refusal from any sensible and decent person.

Yet.

From Trump’s perspective, and adopting his assumptions, the refusal is a perfectly rational course of action.

Currently, Trump has within his power a thing that is valuable, a power that many would many want him to exercise.

He has a thing that many people want.

But if he exercises that power, he is left with little or nothing.

He would at a stroke become a lame duck president, easily disregarded.

And so he is going to hold on to that thing as long as he can.

If Trump concedes, he personally gains nothing – even if the United States polity gains an immense relief.

And so this is a grand exercise of political game theory: as long as Trump holds on he has the possibility of something in exchange for the valuable concession.

From a personal, selfish perspective what possible incentive is there for him to concede this valuable thing for nothing in return? 

There is none.

Of course, sensible and decent people would want Trump to act with public spirit, for the good of democracy and political stability, and for the benefit of public health and social peace.

But for Trump, these considerations are alien, as his considerations are alien to us.

His assumptions are entirely selfish and self-serving, and on those assumptions, what he is doing is what a rational actor would do in his predicament.

And this is the key to understanding Trump: the constant pursuit of leverage.

Trump is, in effect, like a video game character forever leaping from seesaw to seesaw.

Of course, he has only until 20 January 2021 to play this game.

For unless something extraordinary happens, his term ends by automatic operation of law.

But the potential disruption of two months without concession is immense and he knows it, and so he is playing it for all its worth.

This is perhaps a perfect example of a thing being illustrated by the manner of its departure.

For while Trump does not concede, he retains power, attention and money; he can generate income; he can promote possibility of running again; he keeps a hold over Republicans in Congress; and he can even seek a deal in return for the concession.

From his perspective it would be irrational for him to concede.

Trump may be better understood as a supposed business person, going from – and then reneging on – deal after deal, than as a politician.

Again, the constant pursuit of leverage.

Will he concede before 20 January 2021?

Maybe, though only if it suits him.

But it may also suit him to maintain and promote an ‘undefeated’ brand.

In any case, we should always be careful about dismissing unpleasant politics as ‘weird’, ‘bizarre’ or ‘mad’ – you may instead be dealing with perfectly rational behaviour but on very different assumptions.

The surprise is not that Trump is refusing to concede when defeated, but that any of us ever thought he would.

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