Category: United States Law and Policy

Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

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

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

Process is his friend.

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

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

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

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

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

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

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

But here it looks like process will prevail.

*

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

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

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

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

*

Take, for example, Brexit.

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

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

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

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

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

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

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

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

Think of Ivan Rogers, among many others.

*

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

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

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

The unpredictability and noise and damage is unwelcome.

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

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

But.

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

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

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

**

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

23rd November 2020

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

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

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

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

Such eccentricity, however, was relatively rare.

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

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

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

But.

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

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

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

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

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

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

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

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

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

Others would ‘tut’.

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

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

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

Nor do the Trumps and the Johnsons.

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

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

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

Perhaps things may get back to normal.

Perhaps.

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

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

**

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

22nd November 2020

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

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

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

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

And this footnote is a thing of utter beauty:

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

*

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

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

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

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

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

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

*

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

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

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

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

But any court can only do so much.

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

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

*

One final observation can be fairly made on all this.

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

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

This is a paradox, if not a contradiction.

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

They should make their minds up.

**

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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.

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

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

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

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

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

**

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

17th November 2020

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

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

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

Yet.

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

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

He has a thing that many people want.

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

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

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

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

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

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

There is none.

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

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

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

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

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

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

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

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

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

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

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

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

Again, the constant pursuit of leverage.

Will he concede before 20 January 2021?

Maybe, though only if it suits him.

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

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

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

**

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Trump and Biden are now in a story telling contest

11th November 2020

President Donald Trump is many things, but there are many things which he is not.

He is not, for example, a billionaire businessman, but instead a person who tells the story that he is a billionaire businessman.

And he has not been a successful or accomplished president, but instead someone who tells the story of having been a great president, perhaps the greatest ever.

Trump is, in short, a story teller.

Even the things for which he was famous before becoming president were exercises in story telling.

The Apprentice TV show is, for instance, not about how to be successful in business but about giving the impression of being successful in business.

(Indeed, many of the figures people most associate with being ‘successful business people’ are usually deft brand promoters, their brand being they are successful at business.)

But Trump tells other stories, and knows well the power of stories.

The ‘birther’ phenomenon was about casting doubt on the legitimacy of the election as president of Barack Obama.

It did not matter to Trump that the story was untrue: the subversive impact of the story was the point of it.

Political stories that undermine legitimacy are, of course, not new.

Historical examples include the ‘warming pan’ story promoted to delegitimise James Stuart as pretender to the throne, and the ‘stab in the back’ story promoted by Hitler and the National Socialists.

And now Trump is telling a new story, the story of the stolen election.

Trump and his lawyers and advisers know that the election is lost.

As this blog set out yesterday, the presidency of Trump will end on 20 January 2021 by automatic operation of law, unless something extraordinary and unexpected happens.

Yet for various reasons, it is expedient for Trump and his supporters to affect that this is not the case.

In an extreme example, the American Secretary of State even said in a formal setting that there will be a smooth transition to a second Trump term.

Pushing this narrative may be to create political leverage, or to raise funds, or to mobilise supporters, or whatever.

The motive is less important that the fact that the story is being told.

*

Yet, Trump is not the only important story teller at this political moment.

Joseph Biden and his campaign team are also promoting a narrative.

They have posited an ‘Office of the the President Elect’.

They are publishing summaries of conversations between Biden and world leaders.

 

The Biden campaign are, in essence, telling the story of political stability and a return to normality.

This is a more sensible and refreshing story, compared with the subversive story being promoted by Trump and his supporters.

And any sensible person will support Biden over Trump in this.

But it is still a battle of storytelling, like a contest of meistersingers, or an eisteddfod, or a rap battle.

And what is at stake is the sense of legitimacy of the election.

It was not enough, sadly, for Biden to win the popular vote and to win more electoral college votes.

There is now a second battle as to the legitimacy of the election, notwithstanding that Biden had an emphatic electoral victory.

Unless Biden prevails in this second contest, the Trumpite narrative will linger: Biden in a warming-pan, the American nation stabbed in the back and so on.

It will not be enough for Trump to be defeated, he must be seen as being defeated.

And, in this, one should not underestimate Trump.

For he is a great mendacious political storyteller, perhaps one of the greatest ever.

**

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‘The longest Tuesday’ – the US election one week later

10 November 2020

A week ago today, also a Tuesday, was election day in the United States.

The day seemed go on forever, for days, before it became apparent that Joseph Biden had won and the media networks ‘called’ the election.

It is, however, only apparent that he will be the next president: votes need to be certified by the States, the electoral college needs to meet, there needs to be a meeting of Congress to announce the winner, and so on.

There is therefore a possibility that something somehow could happen which would prevent Biden becoming president.

That said, on the information currently available, any legal challenge brought by Trump does not seem to have a realistic chance of success.

It is easier to threaten a case than to win one.

And for any legal challenge to prevail there needs to be substantial evidence and credible legal argument.

Law is not magic, and a party will not be granted a remedy just because of displeasure or disappointment.

Any (serious) lawyer for Donald Trump should be assessing the extent to which the evidence and arguments available really add up to dislodging the entirety of the majorities being reported in the key States.

There may, of course, be ‘non legal’ reasons for not conceding defeat: vanity, an attempt to create a false narrative, a desire to continue with fund-raising, an exercise in contriving some leverage for a ‘deal’ exchanging cooperation on transition for immunity from prosecution, and so on.

But such ‘non-legal’ reasons ultimately depend on the credibility and substance of the potential legal challenges.

Unless Trump and his legal team can fashion a good legal argument, then the votes will be certified, the electoral college will meet, Congress will approve, and so on.

And so, unless something exceptional and currently unforeseeable happens, Trump will cease to be the President of the United States on 20 January 2021, by automatic operation of law.

At which point, if he remains in the White House without permission, he would become a mere trespasser on federal property.

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“Law & Order!” and law and order

1st September 2020

Here is a tweet from Donald Trump.

And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.

In recent days, Trump has tweeted a number of times about ‘Law & Order!”.

*

One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.

Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.

But such ‘reply guy’ points do not really matter.

*

The potency of “Law & Order!” does not depend on Trump’s record or his consistency.

What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.

And it may be effective again.

The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.

“Law and Order!” has nothing to do with law and order.

It is about coercive power and about those who that power should be inflicted upon.

It is about control and it is about supremacy.

*

Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.

But he has worked out a way to get power, and his opponents so far have not.

Do not underestimate him.

(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)

Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.

The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.

And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.

The thing would have to be defeated some other way.

And that defeat must be political and electoral.

For example, looking to the courts or to special counsel investigations is wishful thinking.

Lawyers and judges are many things but they are not fairy godmothers.

(And “activist lawyers” also feed the thing.)

*

Pointing out lies does not work when a sufficient number of voters do not mind being lied to.

And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.

To care about law and order, and not “Law and Order!”.

And that ain’t going to be easy.

**

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“Meddling” and the mindset of Trump and Johnson-Cummings

11th August 2020

President Trump says a lot of tosh but sometimes a word or phrase is telling.

“Meddling”

Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.

An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.

That is what political parties do in a democracy.

And if there is corruption or other irregularities then that is what electoral law is there to regulate. 

*

But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.

“Meddling”

The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.

And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.

*

Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.

After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.

The impulse is always the same: the desire to remove formal impediments.

There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.

The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.

*

By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.

First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.

Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.

And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.

*

The worry is that they can and will get away with this for as long as possible.

There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.

And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.

But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?

Will basic constitutional and democratic norms reassert themselves this time?

Or will this ‘executive power project’ carry on and on?

And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?

**

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