To Win The Presidency, Sacrifice Law

The Texas Tornado, Mark Bennett made a sadly ironic, yet funny, twit: Today’s Twitter Instant Law Degree Specialty is in criminal-defense ethics. The renewed attacks on Hillary Clinton (as well as Tim Kaine) for having defended the accused are making their rounds again, being argued as if there was any issue of impropriety involved. There’s not. There is no legitimate argument on this issue.

For some time, Hillary Clinton’s critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim1 in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton’s description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.

You can question Clinton’s post-representation demeanor, but there is nothing, absolutely nothing, to question about her representation of her client. But we’ve been over this many times before. It’s a “tried and true” weapon in politics that relies on ignorance.

But, but, but you want Trump to win? That’s fine. There are plenty of arguments you can make that don’t require reliance on something so legally wrong. Your hatred of Clinton is not an excuse to make people stupider by relying on a flagrantly misguided argument. Just because people are sufficiently ignorant that they will buy that argument isn’t a reason to feed stupidity.

But then, the other team isn’t above playing its own game of “make people stupider about the law,” as otherwise smart people like Ari Melber, or people on big soapboxes like Paul Krugman, have pounded the claim that Trump has “pledged” to put Clinton in jail.

Donald Trump’s debate-night vow to appoint a special prosecutor to investigate Hillary Clinton’s email setup and put her “in jail” provoked a sharp blowback from former U.S. prosecutors, who said Trump’s view of the Justice Department serving the whims of the president is antithetical to the American system.

While presidents appoint the attorney general, they do not make decisions on whom to prosecute for crimes — and were Trump to do so, prosecutors warned, he would spark a constitutional crisis similar to that of the “Saturday Night Massacre” in the Nixon administration. In that case, Nixon attempted to fire the prosecutor investigating the Watergate scandal, and the top two Justice Department officials resigned on the spot.

That’s not what Trump said. That’s not what Trump meant. And it’s inconceivable that Josh Gerstein is so myopic that he doesn’t know it. There’s damn good reason to believe that had Clinton been anyone else, she would have been prosecuted and, if convicted, sentenced to prison. Lesser government employees have enjoyed a vacation at Club Fed for lesser recklessness. And had there been an independent prosecutor, that might well have been the outcome.

Trump wasn’t being a dictator, claiming the authority to jail his political opponent. Get a grip, no matter how much you hate Trump. Hanlon’s Razor still applies. Try deleting stuff from your computer while under congressional subpoena and see how it works out for you. Clinton did what she did, which may be totally inadequate for you to support her opponent or condemn her under the circumstances, but unless you’re of the view that important government officials aren’t held to the same law as the rest of us, efforts to contort Trump’s point into some Machiavellian ploy are ridiculous.

“For Donald Trump to say he will have a special prosecutor appointed and to have tried and convicted her already and say she’d go to jail is wholly inappropriate and the kind of talk more befitting a Third World country than it is our democracy,” said Paul Charlton, who spent a decade as a federal prosecutor before serving as U.S. attorney for Arizona under President George W. Bush.

Added Charlton: “The Department of Justice isn’t a political tool and it ought not to be employed that way.”

Damn right, it’s not. And that’s what makes denial of the abuse of law, of the prosecutorial power, as wrong for one team as it is for the other. Did the IRS not target conservative groups to eliminate their tax exempt status? But what about the claim that the Democratic Party platform calls for the prosecution of “climate deniers”? This is the plank:

All corporations owe it to their shareholders to fully analyze and disclose the risks they face, including climate risk. Those who fail to do so should be held accountable. Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.

Not exactly the same as calling for a federal investigation of climate deniers? And yet, the same voices are shrieking about Trump “vowing” to imprison Clinton? Nuance for me, but not for thee?

And yes, Sen. Jeff Sessions, grabbing women by their genitalia is sexual assault, and that’s a crime. And you get to vote on laws?

Watching Rachel Maddow last night, dripping with smug self-righteousness as she ridiculed one candidate with puny and silly claims that mirrored the depth of thought and sincerity of Sean Hannity, it occurred to me that everyone has abandoned serious and mature thought in favor of throwing whatever feces is available.  If that’s all we’ve got left, it could well explain why the two major parties proffer the two worst candidates imaginable. So be it. We get the government we deserve.

But don’t promote legal ignorance in furtherance of your cause.  The campaign will be over in a month, and someone will win and someone will not. But the stupid you use in furtherance of your favorite candidate today will be perpetuated long after we’ve moved on to the next disaster. People, including people running for high office, are already clueless as to the law, despite their having graduated from Twitter Law School. Instead of playing the stupidity for your favorite candidate, why not argue real issues and stop perpetuating public ignorance about the law?  Must everything about this campaign devolve to its nadir?

32 comments on “To Win The Presidency, Sacrifice Law

  1. albeed

    Don’t bother me with the law. I am in the middle of perfecting a fecal ICBM. I was thinking of targeting NY or DC, but isn’t that like carrying coals to Newcastle?

    1. Maz

      “‘The toilet tanks on your commercial airliners often leak. This results in the formation of blue ice on the fuselage. The ice is composed of feces, urine, and blue liquid disinfectant. Now: occasionally, when a plane must descend very rapidly from a great height … chunks of blue ice ranging up to two hundred pounds can — and do — break off and shell the countryside. … I have seen a UPI photo of an apartment in Denver which was pulped by a 150-pound chunk of blue ice.’ …

      “‘So … even if you live where there are no strategic military targets, you can still be attacked by any icy BM.'”

      —- Spider Robinson, ‘Time Travelers Strictly Cash’

    2. Steve H.

      I seem to recall that the RNC established urine, not feces, as the projectile weapon of choice for 2016.

  2. totally serious internet commenter

    Yes, he didn’t say he’d “jail” her, he said he’d “investigate” her.

    Isn’t that scary enough? Whether or not she committed a crime – and she may well have – is it really acceptable to use law enforcement powers on your political opponents? We (almost) impeached Nixon not because he jailed his opponents, but because he used the FBI to dig up dirt on them. That has to be right because the power of the state to find some felony – any felony – is too strong, the temptation to abuse it too dangerous, and the collateral consequences of even having to defend a politically motivated indictment are too harsh.

    In other words, would you be OK if Hillary promised that, if elected, she’ll sic the DOJ on Trump for tax evasion?

    1. SHG Post author

      First, if you want to comment, give an email address. Just because you’re a intellectual weasel doesn’t make you special.

      Second, no, it’s not “scary enough.” It’s no more scary than anyone else investigated in this country. No, it’s nothing like Nixon’s articles of impeachment (and Ari Melber’s argument that it is conclusively proves he will sell his intellectual honesty for nothing), which is so brutally obvious to anyone who is not either a blithering idiot or has his head so deep up his ass as to be incapable of anything remotely resembling thought.

      Third, if there was evidence that Trump evaded taxes, then Hillary should promise to investigate him if the government, despite this evidence, gave him a free pass while imprisoning others for the same or lesser conduct.

      Fourth, it’s completely understandable why you’ve chosen to hide behind a infantile pseudonym. You’re a moron. You are the reason why we have a choice between the two worst candidates in history.

      1. even more serious internet commenter

        [Ed. Note: Use your real email or you don’t get to comment here anymore.]

  3. spumoni101

    Secretary Clinton had no business implying that her client was guilty, especially given that no physical evidence supports this belief.

  4. Bruce Coulson

    No political campaign in our history has ever let the facts get in the way of attacking the opponent. What’s truly deplorable is not the campaigns (not that they aren’t awful), but that all the commentators have become cheerleaders for whichever side they prefer, and are happily following the campaign rhetoric over the cliff.

  5. John J Lentini

    “Did the IRS not target conservative groups to eliminate their tax exempt status? ” They did. They also targeted liberal groups to eliminate their tax exempt status. The LAW says that 501 c(3) non-profits are forbidden from engaging in politics. Are there more conservative groups than liberal ones breaking this law? Yes. But the spin that the IRS targeted only conservative groups is just wrong. All 501 c(3) that engaged in political activities should lose their tax exempt status. The right cowed the IRS into backing off enforcement of this law.

    1. SHG Post author

      Like five-year-olds pointing fingers: they started it. Well they did it more. But they’re wrong. No we’re not. Yes you are. Sheesh.

      1. Jonathan

        That’s not quite fair. The keywords used by the IRS to target nonprofits for scrutiny included terms associated with both liberal and conservative groups. The statistics on how that played out in practice can be sliced different ways, but it does seem that more tea party groups faced scrutiny and delays.

  6. Matthew Wideman

    I too thought it was ridiculous of Donald Trump to bring up Hillary Clinton’s defense of a rapist in a criminal trial. That is what lawyers do!!! We are zealous advocates for our clients.

    It makes me sad that our political debates are more about scoring invisible points on a partisan score board, than a serious discussion of the issues. Hillary had been doing a bettet jib of staying out of the fray, but I think she did a poor job this time.

    1. SHG Post author

      Scoring invisible points is one thing. Scoring points by preying on public ignorance is worse. Making the public stupider to score those points, however, is about as low as it gets.

  7. anonymous coward

    I’m just surprised that Hillary Clinton was able to conduct an effective criminal defense since I always thought of her as a legal dilettante who only went to law school to become a politician.
    I’m also disappointed that she is so quick to disavow it, but I can’t say I’m surprised.

    1. SHG Post author

      To the extent that lawyer-Hillary existed, it was gone when she agreed with Trump that the no-fly list was a great basis for Second Amendment denial.

  8. Mr. Median

    Olmstead v. United States, 277 US 438 (1928) (Brandeis, J., dissenting): “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

  9. Jonathan

    Most, if not all, of Clinton’s defenders start by pointing out she tried to get off the case. That’s the most dispiriting bit to me.

  10. Lex

    Krugman not all that long ago: “I’m sorry, but if we don’t have an inquest into what happened during the Bush years … this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.”

  11. DaveL

    No matter who wins this November, the following January the next President will be required to publicly bind herself / himself on oath or affirmation to uphold the Constitution of the United States. Well, this is what “upholding the Constitution” looks like in practice, not remembering to wear your damned lapel pin. It gets ugly. We seem to understand that when it comes to war, for some reason, though I can’t for the life of me figure out why cross-examining an accuser in court should be somehow intrinsically less moral than sending good men charging into machine gun fire.

    1. SHG Post author

      It’s not nearly as thrilling as some people think explaining (for the millionth time) why constitutional rights matter, and why inane legal arguments rationalizing why any particular situation is somehow different because reasons.

      If I ran for office, I wouldn’t wear a lapel pin. That would likely be good enough reason why I wouldn’t win (when there are obviously so many better reasons). That’s ‘Murica.

      1. DaveL

        Still, I think “Sit down. I have something to tell you and it’s going to make you sad*” would make a great campaign slogan.**

        * To which I would add “but I promise it won’t make you stupider.”

        **This might have something to do with why I’m not a campaign manager.

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