Category: United States Law and Policy

Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump

9th January 2021

‘Impeachment’ and ‘indictment’ are sister words, sharing the suffix ‘-ment’, and they describe two ways by which a person can be tried and then either convicted or acquitted.

One practical difference (at least in modern times) between the two is that impeachment is usually a political process, while a trial on indictment is a matter of criminal law.

And one effect of this distinction is that if a sitting president of the United States is immune from prosecution in the criminal courts, there is always the alternative route of impeachment.

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There are only eleven days before this presidential term ends, by automatic operation of law, on 20th January 2021.

The electoral college vote has been certified by congress and so there is no constitutional impediment (as far as this English lawyer is aware) to Joseph Biden becoming president on that day.

The question is whether Donald Trump should continue to be president in the meantime, given what he did and what happened on 6th January 2021.

As eleven days is such a short period, there is merit in the view that we should just wait it out – especially as he no longer has access to his Twitter platform (and the implications of such a ban was discussed on this blog yesterday) and the speaker of the house of representatives has has assurances on the president’s access to the nuclear codes.

And there is something also to be said that it would still be wrong, even now, to in effect override the result of the 2016 election – there was a democratic process and Trump as president was the result at the end of it.

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But.

Impeachment exists in the United States constitution for a reason.

And if a president inciting a mob to invade Congress so as to disrupt the certification of the electoral college vote (in what this blog avers was an attempted coup) does not fulfil the requirement of a high crime and misdemeanour, then it is difficult to imagine what else would do so.

Even with only eleven days to go, such an extraordinary event should not go unmarked and shrugged-off.

Impeachment and conviction can also disqualify Trump from holding office again.

(And so, in respect of the presidency, such disqualification would place Trump in the same position as if he had not been born in the United States.)

On this basis there is a strong – if not compelling – case that Trump should be impeached and convicted – both in terms of what has happened and of the future.

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Yet.

You do not sustainably solve a problem caused by hyper-partisanship with more partisanship.

And so any impeachment and conviction should ideally be on a genuinely non-partisan basis – and not just the Democratic bloc with a few Republicans.

Here the United States constitution is helpful – as a conviction by the senate has to be with the ‘concurrence of two thirds of the members present’.

Therefore there would have to be a substantial number of Republican senators in favour – but even if there were sixteen or so such Republican senators, it would still savour of partisanship, unless the Republican congressional leadership were also in favour of conviction.

This is not to say that there should not be an impeachment and conviction if enough Republican senators are in favour – sometimes you just have to do the right thing anyway – but a warning that such an exercise will not be the once-and-for-all end of the problem of Trump and Trumpism.

But, then again, there may not be any solution to that problem.

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There is another way that could be employed to displace Trump.

The twenty-fifth amendment provides an elaborate mechanism by which the vice president and members of the cabinet can declare that the president is unable to discharge the powers and duties of the office.

In these circumstances the vice president will become the acting president.

This approach has the attraction of being inherently non-partisan – as those making the decision are Republican politicians – and also the attraction of pragmatism – as it deftly yanks Trump away from exercising the powers of the president.

The problem, however, is that it is not – at least not directly – a mark against the encouragement of the attempted coup, and nor does it disqualify him from future office.

(Or Trump could – like Nixon – just resign in an attempt to pre-empt any of the above – but it is hard to imagine Trump bringing himself to sign that piece of paper.)

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Of course, whatever does happen will then look as if it were inevitable all along.

But whether or not Trump is impeached and convicted, there will still be two truths.

First, impeachment is there for a reason.

And second, what the president did on 6th January is such a reason.

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Trump’s social media ban in perspective – the unpalatable difficulties of regulating political and media activity in the internet age

8th January 2021

Once upon a time, and not so long ago, mass political parties and national media organisations were themselves novelties.

Both were responses to the emergence of popular democracy and widespread literacy in the late 1800s.

Political parties and media organisations (for example, ‘Fleet Street’) were ways by which the relationships were mediated between the elite and the governed.

The means of political organisation and of publication – and, later, of broadcasting –  were in the hands of the few.

Indeed, until the 1990s, it was difficult (if not impossible) for any person to publish or broadcast to the world, without going through the ‘gatekeepers’ of a national newspaper, or a publishing house, or a national broadcaster.

Similarly, it would be difficult (if not impossible) for any person or group of people to obtain significant political influence – at least in the United Kingdom as a whole – without going through a national political party.

So – although both politics and the media on a national level had opened up to the population as whole – the ultimate means of political and media control were still quite centralised.

Top-bottom, command-and-control.

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And when power is concentrated it is easier to regulate.

So, just as modern political parties and media organisations emerged at the end of the 1800s, so did the regulation both of political parties and of the media.

Back in October 2019 I set out at Prospect why the electoral law of the United Kingdom that was developed in different circumstances was no longer fit for purpose.

Similar points can be made about media law: for example, there is no real point tightly regulating certain news titles or national broadcasters when the same content can be circulated – often even more widely – on social media platforms by those outside such creaking regulatory regimes.

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If traditional political parties and media organisations did not already exist as hangovers from the time before modern technology and communications, they probably would not now be invented, at least in a recognisable form.

And that therefore must follow for how political and media activities are regulated.

Just as traditional political parties and media organisations were once novel responses to new social and economic conditions, we need to think afresh about the nature of political and media power and about the extent, if at all, it can be regulated.

For now anyone with an internet connection and access to certain platforms can publish and broadcast to the world, or can seek and obtain significant political influence or power.

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To ‘regulate’ a thing is to make it possible that the thing would have a different outcome, but for the regulation.

If a regulation can have no effect, then the thing supposedly being regulated carries on regardless, and the regulation is a polite fiction. 

Futility is the enemy of sound regulation.

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And now we come to President Donald Trump and his recent temporary ban from Twitter and his indefinite ban from Facebook.

Neither Twitter nor Facebook are traditional media organisations – indeed both were formed within the lifetime of anyone reading this post.

But they are not only media organisations – they have also taken on some of the functions of traditional political parties – as the practical means of political organisation, mobilisation and sharing of information.

This is not to say that the social media platforms are beyond the law – they are (in theory) subject to terms and conditions, laws on equality and non-discrimination, laws on data protection and intellectual property, and so on.

It may be that these general laws are not enforced, or perhaps not enforceable – but there are laws which apply.

The issue is that those laws are general laws and not specific legal regimes covering media and political activity.

And so what we have are platforms of immense media and political power – and without any specific media and political regulation.

They are, in effect, private organisations – and (subject to general laws) are entitled to suspend and terminate, or to enable, the accounts of any politician.

They can even suspend the social media account of (arguably) the most powerful politician in the world.

And they have done so.

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For many, the way to deal with the political and media power of social media platforms is easy.

Regulate!

Something must be done, and so something will be done, and that something that will be done will be to ‘Regulate!’

But asserting that a thing should be regulated is not the same as it being capable of regulation.

One may want the tides of the sea or the weather to be different, but it does not follow that they can be made any different.

So it may be that although social media platforms – huge private corporations – have immense political and media power, it does not follow that they can be easily regulated, or regulated in any meaningful way at all.

And even if regulation was possible, it is almost certain that it cannot be on the same basis of the top-down, command-and-control regulation of political and media activity that we have inherited from previous times.

For example, social media platforms have millions of publishers and broadcasters, not just a handful.

There are no elaborate steps before publication and broadcast as with a Fleet Street title or established book publisher.

They are no limits on how much political propaganda can be published and to whom it can be circulated.

If any of this can be ‘regulated’ then it almost certainty will not be by tweaking old pre-internet regulatory models – and this is because the things being regulated are of a fundamentally different nature.

And – and this will be very hard to accept for those who believe every real-world problem has a neat legal solution – it may be that social media activity can no more be regulated meaningfully than conversations in the street or in the town square.

That the age of specific regulations for media and political activity are over, and all we are now left with are general laws.

Many will not be comfortable with this – and will insist that ‘something must be done’.

Yet futility is the enemy of sound regulation.

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Perhaps something should have been done in respect of President Donald Trump’s unpleasant, dishonest, reckless and dangerous use of his social media account before this week.

And what has now been done is too little, too late.

Others would say that silencing an elected politician’s means of communication should not be at the fiat of a private social media platform.

Views will differ.

But the wider questions are:

If a thing is to be done about the use and abuse of a social media platform by those with political and media power, who should have the power to do this?

And on what basis should they make that decision? 

And to whom (if anyone) should that decision-maker be accountable?

And if the social media platforms themselves are left to regulate what political and media activity can take place and what content we can read and watch, who (if anyone) can regulate them?

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‘Quis custodiet ipsos custodes?‘ – who watches the watchmen? – is one of the oldest and most difficult questions in the history of organised societies, and it is a question that sometimes has no answer.

And now our generation gets to ask and to try and answer this question.

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POSTSCRIPT

Later on the day of this post, Trump’s Twitter account was permanently suspended.

https://twitter.com/TwitterSafety/status/1347684877634838528

 

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The contest between violent populism and constitutionalism – and why it was not inevitable that yesterday’s attempted coup in the United States would fail

7th January 2021

Yesterday we watched, in real-time, an attempted coup in the United States.

Was it an attempted coup?

Some are already fussing about the ‘coup’ word – that it was merely a security violation, a mere matter of public order.

That view is not correct, for three reasons.

It was an attempted coup.

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First, an essential constitutional stage for a peaceful transfer of power was disrupted.

The constitutional stage – usually a formality – was the certification of the electoral college vote by congress.

It is this certification that would make the inauguration of a new president happen on 20 January 2021 by automatic operation of law.

No certification, no certainty of inauguration of a new president.

The disruption was the object and the effect of the disorder.

And until and unless the electoral college vote is certified then the 20 January inauguration is uncertain.

(The resumed Congress is still considering the electoral college votes as I type.)

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Second, the disruption was at the behest of the losing candidate – or, if you nod-along with plausible deniability, it was at least done so as to ensure he stayed in office.

It was disruption with the purpose of keeping a losing candidate in office.

And that candidate then praised these ‘special’ people for what they did.

Indeed, for the candidate’s daughter, these disruptors were ‘patriots’.

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And third, the disruption was forceful.

The mob forced their way in, and there are reports of fatalities and injuries.

This was not a peaceful protest or an exercise in civil disobedience.

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So a group (a) used force to (b) disrupt an essential constitutional process (c) at the behest of (or in the interests of) a politician – and if that disruption had succeeded, the inauguration of a new president would have been rendered uncertain.

That was an attempt at a coup.

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One significant detail in what happened yesterday was that the order to deploy the national guard came from the vice president, not the president.

As Sherlock Holmes would have said, this was a ‘curious incident‘.

This means that, left to the president, there would have been insufficient coercive power to disperse the mob.

As any A-level history student knows – or should know – for a rebellion to succeed requires not only rebels, but also a weakness in the regime that is being rebelled against.

Usually the weaknesses of the regime are not deliberate.

But here the president seems to have wanted to maximise the disruptive power of the mob.

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Another significant detail is how light-touch the policing was generally.

As a liberal, I am all in favour in light-touch policing.

The priority in such a situation should be public safety rather than the use of brutal – or lethal – force.

Yet the contrast with the policing of, say, the Black Lives Matter protest is stark – and telling.

If those who rioted yesterday had different colour skins then they would have been no doubt arrested or shot by police officers dressed up like Robocops.

Instead, there were hardly any arrests, and the rioters were just allowed to go home.

The photographs of some of the rioters – posing here and there in the Capitol – would be unthinkable if they were not white.

What happened yesterday was an expression of white privilege.

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This attempted coup is what you get when politicians play with the monster of populist nationalist authoritarianism.

So often in history, politicians believe they can tame this beast, and that the beast will serve them.

And those politicians usually end up being devoured by the creature.

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Today, it look like the attempt at a coup failed, and that the new president will be inaugurated on 20th January 2021.

Yesterday was a contest between constitutionalism and violent populism.

It was not inevitable that constitutionalism would always win this contest.

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How the Trump experience both weakens and strengthens the case for a ‘written constitution’

6th January 2021

Imagine – just for the sake of this post – that the United States did not have a written constitution.

And now imagine that there had been a president like Donald Trump in office over the last four years who had pretty much done what Trump had done – every outrage, every attack on a minority, every sacking and every appointment, every manipulative or threatening telephone call, every high crime and misdemeanour, and so on.

There would be pundits who, when presented with such a catalogue of wrongful conduct, would assert confidently: ‘you see, this shows the need for a written constitution!’

But the thing is: there was a written constitution, and all these bad things happened anyway.

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Back in November 2020 – and more in hope than expectation – my column at Prospect magazine was entitled ‘Why we need to stop talking about a written constitution’.

My three main contentions were as follows.

First, a written constitution (that is, for the purpose of discussion, a codified constitution) is inherently neither a good nor a bad thing – and, indeed, such a constitution can either entrench or mask illiberalism or tyranny.

Accordingly, the knee-jerk demand for a written constitution at every constitutional trespass is misconceived, as such a constitution is not a panacea.

Second, in England (and, as presently constituted, the United Kingdom) there is no plausible path to entrenching any constitutional code, regardless of any theoretical attractions.

And third, the demands for a written constitution whenever there is a constitutional trespass are too often a substitute for attempting any actual constitutional improvement.

All a pundit will announce is ‘you see, this shows the need for a written constitution!’ and nothing else will be said.

And this insistence on an absolute ideal in any conversation about the constitution, instead of any practical suggestions, was and is (in my view) part of the problem.

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But.

Regardless of the (provocative) title of that column, there are times to revisit the debate about the merits and otherwise of a codified constitution.

This morning, the news reports from the United States are that the Democrats may have won both Georgia senate seats – and, if so, that would mean the Republicans will lose control of the senate.

Today the United States congress will meet and it is expected that the electoral college vote will be certified, meaning Donald Trump has lost and Joseph Biden has won.

The Trump presidency will thereby end, and the Biden presidency will begin, on 20 January 2021 by automatic operation of law.

These are welcome political developments for anyone opposed to the nasty authoritarian nationalist populism of Trump and his Republican supporters.

They have lost.

So surely: this shows the merits of a written constitution?

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Tony Benn famously posited the five questions of any democracy:

‘What power have you got?’

‘Where did you get it from?’

‘In whose interests do you use it?’

‘To whom are you accountable?’

‘How do we get rid of you?’

Of these five questions, the one which (in my view) has the most power is the last one: ‘How do we get rid of you?’

And applying this question to the Trump experience, the answer is stark and indeed unavoidable.

Donald Trump has been got rid of because of the provisions of the constitution of the United States.

As the events since his election defeat have shown, there is nothing he would not resort to doing so as to keep office.

In an extraordinary and significant intervention, all living former United States defense secretaries wrote in the Washington Post warned against the armed services being used to affect the result of elections.

The same newspaper also released a similarly extraordinary and significant telephone conversation where Donald Trump was placing illegitimate pressure on the Georgia secretary of state to overturn an election result.

The grim reality is that if Donald Trump could find a way to stay in office he would use it.

And if this grim reality is accepted, then it must also be conceded that the only reason he has not stayed in office is because there was something more powerful in his way.

And that thing which is more powerful is the (codified) constitution of the United States.

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Being, on one hand, critical of constitutional trespasses and abuses and, on the other hand, sceptical of the claims made for codified constitutions, has the merits of being an independent and (I hope) intellectually consistent point of view – even if it appears not to have the benefit of also being a popular one.

The Trump experience does not show (at least to me) the merits of a written constitution – every single bad thing that has happened over the last four years has happened despite there being a written constitution in place.

Every single one.

And this evidences, if not proves, that a written constitution is not a panacea – and those in favour of codification should stop pretending otherwise.

But.

Taking the last of Tony Benn’s questions seriously, it also has to be admitted that codification, in certain extreme situations, can help in getting rid of those in power who seek to abuse power.

(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)

The outstanding constitutional question, however is not about how Donald Trump was finally removed from office, but how he was allowed to get away with so many wrongs in the meantime?

And that is a far more difficult question for supporters of codification to answer.

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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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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

***

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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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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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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.

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

(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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