The last of the legal correspondents, and the true crisis in the public understanding of law

3rd January 2021

At the end of last year two legal correspondents retired.

Owen Bowcott at the Guardian:

And Clive Coleman at the BBC:

It is an end of an era.

Yes, there are still full-time legal correspondents in the United Kingdom: at the Times and at the Financial Times.

But in both those cases the journalism is behind a paywall – and that is not an accident, as funding full-time specialised correspondents in any area is an expensive business, and if you want good specialised journalism in this internet age you do have to pay for it.

With the retirements of Owen Bowcott and Clive Coleman there is now no longer (as far as I am aware, and I would be delighted to be corrected) any full-time specialised legal correspondent at any news provider whose reporting is available generally to the public.

The nearest we have is Joshua Rozenberg, who is not exclusively attached to any news organ, providing reportage and comment at a number of titles and now on his own blog.

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Does this matter?

This demise of the legal correspondents comes at the same time where an understanding of how law works is as – if not more – important than ever.

Without legal correspondents it will be left to generalist journalists to report on, say, high-profile legal cases and the legal aspects of government policy.

And this in turn will increase the influence of (so-called) litigation PR specialists (who effectively provide copy to the media favourable to their clients involved in legal cases) and ministerial special advisers leaking spin-ridden and distorted accounts of law-related policy.

This is not to say there are not good generalist journalists reporting on legal matters but to observe that there will be an imbalance between the time-poor reporter without a bank of expertise and the well-resourced or well-informed but highly motivated source.

Having a specialised legal correspondent at a news title who was not reliant on PR or governmental sources meant there was detachment and reliability in their reports from court and the frontline of legal activity.

And this has now gone.

Something has been lost, and it will not be regained.

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The demise of the legal correspondents, however, comes at a time where reliable legal information is more freely available than freely before.

In the United Kingdom, for example, legislation is set out at the legislation.gov site and jusdgments at the BAILII site.

The Supreme Court has an outstanding site that not only provides case reports but also summaries and other useful information, and the UK judiciary site provides not only newsworthy case reports but also the judges’ sentencing remarks in high-profile and controversial cases.

It has never been easier for the spirited citizen to gain information about the law and to understand its application in particular examples.

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But.

Few lay people will bother – as screens full of dry text are daunting and the law is (or at least looks) complicated.

A screen suddenly full of legal verbiage is as scary or bewildering to a lay person as a page suddenly full of source code.

Legal information may well be free to all – but unless you have relevant experience and know your way round legal instruments and other legal documents, such access is only of theoretical value.

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But what of legal bloggers and tweeters?

Surely they (we) can step in and fill the gap between the law and the public understanding of law?

Here there are two problems.

Many leading legal bloggers and tweeters are of two types.

First, there are the legal academics – and many are as brilliant in explaining substantive ‘black letter’ law to lay people as they are to their lucky students.

But the academic exposition of substantive law is only one aspect of the public understanding of law – few legal academics will report from the courtroom in trials where there is little of academic interest, nor will they be routinely invited to Whitehall press briefings, nor develop sources such as judges and practitioners just for providing news.

And, analysis and commentary – however outstanding – is not the same as reportage.

Much the same can be said of the second group of legal bloggers and tweeters – legal practitioners such as barristers (and a few solicitors).

The additional problem with this second group is that – even more than academics who often need to show ‘outreach’ – such legal communication is voluntary and often haphazard.

Blogging and tweeting barristers (and solicitors) are not paid for explaining the law to the public and – with controversial legal topics – not compensated for the hassle and abuse they will get.

There will be uneven coverage – a lawyer will tend to only write about matters as and when they feel they have something to say about something they know about – and so this can lead to some areas of law being over-represented and other areas of law being neglected.

Blogging and tweeting lawyers  – both academics and practitioners – are a boon to the public understanding of law – but they (we) are no substitute for specialised full-time legal correspondents dealing with law-related news stories as they emerge on any topic, with detachment and perspective.

For that you need, well, full-time specialised legal correspondents at news organisations – and they are coming to an end.

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But there is an even more disconcerting problem, at this time of hyper-partisanship, ‘post-truth fake news’, and populism.

In the United States there are still many specialised courts and legal correspondents – and they have been diligent in exposing and reporting on the various abuses of law and legal process by President Donald Trump and his allies.

Each presidential assault on constitutional and legal norms in the United States has been documented and explained.

And it has made very little difference.

Many people do not care.

As this blog averred on New Year’s Eve – there is no point in the observant Benjamin the Donkey in Animal Farm being more public-spirited, if the other farm animals would not have cared less.

And so, in the United kingdom, even if every news title had a squadron of legal correspondents detailing the many abuses and misuses of law from this supposedly ‘law and order’ government then – looking at the United States – there is no reason to believe it would make any difference.

This, therefore, is the crisis in the public understanding of law referred to in the title of this blogpost.

The crisis is not that we are at the end of specialised reporting of legal news.

The crisis in the public understanding of law is that most of the public do not want to understand law.

A significant portion of the public do not want to understand the law, or care about how the law is misused or abused.

And how do you promote the public understand of law when so few of the public care?

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Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.

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Donald Trump’s subversion of constitutional legitimacy, and its consequences

12th December 2020

The latest attempt by Donald Trump to litigate the 2020 presidential election has ended in failure.

The Supreme Court of the United States has dismissed the attempt by Texas to somehow nullify the votes of other states.

This is – or should be – Trump’s Wile E. Coyote moment.

The post-election litigation has had the quality of him running in mid-air, and now he must – or should – submit to constitutional gravity.

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But.

This defiance – which is shared by many Republicans in congress and nationally – may have dangerous lingering effects.

The defiance is subversive: it is an attempt to contaminate the legitimacy of the election of Joseph Biden.

To poison the wells, so to speak.

And in a way, this is apt and not surprising.

For just as Trump’s campaign to become president started with him denying the constitutional legitimacy of one Democratic president – with the ‘birther’ conspiracy – his presidency has ended with an assault on the legitimacy of another.

This is what Trump is ‘good’ at – identifying and exploiting weaknesses.

Sometimes this is on a personal and immediate level,  so as to obtain leverage in any given situation, or to intimidate someone with a nickname.

But in terms of an entire political system, it is to maintain and increase influence by identifying an issue which undermines constitutional legitimacy itself.

This is bullying on the grandest political scale.

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This bullying will probably be not without consequence.

Along with populating the federal judiciary with conservatives, this rejection of political legitimacy will no doubt be a legacy of the Trump presidency.

And a lack of a shared sense of what is legitimate in any political system rarely ends well, and sometimes even ends with violence.

If a substantial proportion of people do not believe that the mechanisms of political change are valid and fair then they will tend to look to other ways for effecting changes.

Just think of Ireland, along with many other examples.

But it also has less lethal effects.

Normal issues of political debate cannot be approached on their own terms.

A policy promoted by an ‘illegitimate’ executive will be unacceptable, regardless of any merits.

This hyper-partisanship – that goes far beyond the usual knockabout politics of a party system – is devastating to any functioning democracy.

But in an age where a political base can be mobilised directly – bypassing traditional party and media structures – many politicians will be tempted not to show self-restraint.

The sensible convention that one does not go too far politically, not least because one does not want opponents to go too far, is disregarded.

Trump may well have lost his legal battle to retain the presidency, but this Trumpism may well be with us for much longer.

And that, more than desperate legal suits, will be the test Trump leaves for the law and politics of the United States

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Why did the Trump campaign not allege fraud in their post-election court cases?

29th November 2020

Since the presidential election earlier this month the losing candidate, the outgoing President Donald Trump, has repeatedly and loudly alleged fraud.

He has asserted that the lawyers of his campaign can or will show this fraud.

In Trump’s own words: “fraud and illegality ARE a big part of the case”.

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But inside the court rooms, the lawyers for his campaign have not been alleging fraud.

Indeed, his attorneys have expressly said before judges that they are not alleging fraud.

This was noted by the federal appeals court in its judgment last week:

‘The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.”’

(My post on that judgment is here.)

There is therefore a mismatch – the ‘client’ is saying that fraud is “a big part of the case” and the attorneys are explicitly saying in court that fraud is not part of the case at all.

What can explain this contradiction?

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There are two explanations, closely connected.

The first explanation, which is not sufficient by itself, should be the more important one.

This explanation is that there is no actual evidence of fraud – or no evidence that there is more than a trivial number of cases that would not be enough to ‘tip’ any of the results in any of the States.

You would think that the lack of actual evidence would be all that should be required to prevent a lawyer pleading fraud on their client’s behalf.

You would be wrong.

The lack of evidence would explain why any legal claim requiring that evidence would ultimately fail.

And the lack of evidence should mean that a lawyer would not make a claim based on no evidence.

But the lack of evidence does not, by itself, explain what it has not been alleged.

Given their client’s raging belief there was fraud, something else – other than the lack of actual evidence – is needed to explain why the Trump campaign’s lawyers did not allege fraud in the courtroom.

And so we come to the second explanation.

In the United States – as in England – it is a strict rule of court that a lawyer cannot allege fraud in a civil matter without particular evidence.

For confirmation of this I can thank two American lawyers on Twitter.

 

Even Rudolph Giuliani – the former New York mayor who reportedly told Trump that the legal cases would succeed – would not break this rule.

Breaking such a rule would have severe if not career-ending consequences for any attorney, and although attorneys may do anything for Trump, they would not do this.

The refusal to break this rule also seems to me to be the best explanation for why some of Trump’s attorneys quit on the eve of a hearing – my reasoning on this is set out at this thread.

(There is a detailed account of the extraordinary last few days of the Trump campaign’s legal and litigation mayhem at the Washington Post.) 

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Lawyers – often fairly – are the subject of public criticism and media hostility.

Many people will freely deride and insult lawyers (though they also usually ask you for legal advice when they themselves have a problem).

Yet for this negative public image, even lawyers have their limits.

But for the rules of court, it may well be that Trump’s lawyers would have alleged fraud in court, even without adequate evidence, and have just left it to the court to sort out.

That would have been unfortunate, but that did not happen.

And this was because the rules of court turned out to be stronger even than the emphatic instructions of a sitting president.

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The failed appeal of Trump over Pennsylvania – and the relationship between politics and law

28th November 2020

The Trump campaign has lost its appeal from the Pennsylvania court to the federal appeals court.

(My post on Giuliani’s bad day in court at the court below is here, and my post on the judgment of the court below is here.)

The judgment, which was published overnight, is here.

You should take the time to read the decision: it is clear, accessible, and well structured.

It not only decides the case on the narrow ground of the appeal but also on other possible grounds.

On each point, the law and the (lack of) evidence are set out so as to make the judgment not only persuasive but compelling.

There are even quotable general statements which put the Trump campaign right back in its (ballot) box:

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law.”

“Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold.”

And so on.

It is a judgment to enjoy and indeed to savour.

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But for many the remarkable thing is that the judge who wrote the decision is a Trump appointee.

Surely, the thought goes, this is in need of explanation.

The reasoning judgment itself shows a federal appeals judge who takes States’ rights seriously and is anxious about federal overreach – and these qualities are not unusual for a conservative judge.

These is the very jurisprudential approach that the Republicans are seeking to promote with their appointments to the federal bench.

The key fact here is that taking such principles seriously meant that a judge (and a court) went against Trump

(In contrast, a conservative judge emphatically wanting to extend the reach of federal power would have been a more remarkable and unusual thing.)

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The judgment is not extraordinary in another sense.

The political inclination of a judge can only take her or him so far in defiance of the law and the facts.

If there is no law and no facts, only the most partisan of judges can, to invoke a phrase, ‘transmute lead into gold’.

Yes, many do have a sinking feeling that there are justices currently on the Supreme Court of the United States who would strain any case so as to come to a decision that would favour Donald Trump.

And the existence of that sinking feeling indicates a wider concern about the hyper-partisanship in the law and politics of the United States.

But such hyper-partisanship is, even in 2020, exceptional.

And this judgment is a refreshing and welcome reminder of this.

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Yet.

A cautious, attention-shunnng court could have given a judgment with the same effect but on technical and (frankly) unreadable grounds.

(Or, it would seem, the court did not even need to issue a judgment at all in this particular case, see this thread here.)

The court chose to hand down this very readable judgment instead.

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This judgment perhaps tells us two things about the relationship about law and politics in the United States.

First, that there is a limit to hyper-partisanship and the cult of Trump.

Second, there are federal appeal judges that take conservative jurisprudence seriously – even if they do not take (supposedly) conservative campaign law suits seriously.

And it is the latter that will be of lasting legal and political significance.

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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.

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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).

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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.

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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.

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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.

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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.)

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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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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.

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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.

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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.

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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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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.

*

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.

*

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.

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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