A Nation of Fake Lawyers
At some point in the not too distant past—or am I imagining this?—things were either good, or bad, in themselves. You didn’t need a law degree or specialized expertise to decide what was best for the country, or what to look for in a leader.
That famous line by William F. Buckley, Jr., that he “would rather be governed by the first 2,000 people in the Boston telephone directory than by the 2,000 people on the faculty of Harvard University”? It wasn’t really about owning the libs, though he must have enjoyed their scandalized reactions. It was an observation that common sense and moral intuition matter more to a republic than technocratic ability or esoteric knowledge. And more often than not, extravagant theories and attempts to impose a better, “more rational” order of things—the stuff tenured intellectuals dream up when left to their own devices—are doomed when they aren’t tethered to the grounding realities of human nature.
But what happens when those first 2,000 people in the phonebook become hyper-engaged partisans?
A generation ago, the politically aware citizen with a bee in his bonnet might write a letter to his member of Congress or the newspaper. Today he’s spamming memes across Twitter and Facebook, and applying engagement metrics to A-B test the most effective lines of attack.
As a result, Americans are embracing sophistry, and arguing more like litigators than citizens. This is especially true for discussions about presidential accountability, which take place in the gray area between four quadrants: the legal, the political, the moral, and the prudent.
For example, look at the continuing debate and litigation surrounding the president and his private business. The Constitution’s “emoluments” clause is simple enough for both Harvard professors and the rest of us schlubs in the phone book to understand:
No Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The public interest in guarding against the corruption of its leaders by foreign countries is plain, as the debate before, during, and after the adoption of the Constitution makes clear. The Founders would have been, at the least, deeply suspicious of a president who sidesteps Congress to lease condominiums to diplomats and rent hotel rooms to visiting monarchs.
Then again, the Founders would have been, at the least, gobsmacked by the idea of a president like Trump. Because despite their dim view of human nature, they believed that men like Trump were unlikely to ascend to the presidency. In Federalist 68, Alexander Hamilton argued that:
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.
One hopes that, après Trump, the presidency returns to Hamilton’s vision, and not the Westerosi view that “every time a president is elected, the gods flip a coin.”
All of which brings us to how insane legalisms now rule public discourse.
A few years ago, the idea that our leaders should not be raking in foreign cash was accepted, more or less, by both sides. For instance, Sean Davis of the Federalist criticized the non-profit Clinton Foundation for accepting donations from foreign governments while Hillary Clinton served as secretary of state. He was right. Even if the contributions did not directly line the Clintons’ pockets, they at the very least created the appearance of influencing government business. As Davis argued,
The Founding Fathers who wrote the Constitution knew what could happen if U.S. officials put cash before their own country, so they banned the practice.
In other words, the Founders were Ready for Hillary.
We did not need an army of lawyers to know that what Clinton was doing was improper. We could all see it with our own eyes.
But not anymore. If you believe that Hillary Clinton’s sins on this subject were bad, then President Trump’s are far worse. Currently, the president is being challenged for violating the emoluments clause in separate lawsuits by House Democrats and by the attorneys general of Maryland and the District of Columbia. On April 30th, federal district Judge Emmet Sullivan ruled that the congressional suit could proceed to discovery, setting up a confrontation that may lead to the Supreme Court.
But why should citizens wait for the resolution of what promises to be drawn-out litigation to decide this case on the merits for themselves? The American people aren’t bound by continuances or temporary injunctions. There’s no reason to submit our political voices to binding arbitration in the courts.
Yet in case after case, that’s exactly what we’ve done.
Take the White House’s assertions of executive privilege for witnesses and documents referenced in the Mueller report. Can former White House counsel Don McGahn be compelled to testify about the president’s request that he terminate the special counsel? Did the president waive privilege when he allowed the prosecutors to interview top aides, or when he litigated key aspects of the Mueller report on Twitter?
These are fascinating questions for lawyers to expound upon in law journals and oral arguments. But citizens needn’t remain on the sidelines. An American voter has every right to demand answers from the president and his aides about their official actions. The executive branch can attempt to hide certain information from public view, but the public need not respect these attempts. They have every right to impose political consequence, regardless of what a panel of judges ultimately decides.
Earlier this month, Trump’s personal attorney, Rudy Giuliani, announced that he was traveling to Ukraine to go “meddling in an investigation, which we have a right to do.” Giuliani went on to explain that “[Trump] basically knows what I’m doing, sure as his lawyer.” Ukrainian officials could be forgiven for thinking that the president’s private attorney should be treated as a de facto U.S. ambassador.
What was Giuliani doing? The mission was to strong-arm the the Ukrainian government into investigating one of the president’s Democratic rivals, former vice president Joe Biden, whose son joined the board of a Ukrainian energy company at the same time a large foreign aid package was in jeopardy.
Did giving the vice president’s son a board seat look like a payoff? Absolutely.
But it’s also worth noting the sketchy nature of some of of these allegations:
Ukraine’s prosecutor general allegedly delivered a letter to Giuliani accusing Joe Biden of personally taking income from the energy company while serving as vice president. The same prosecutor general also claimed that former U.S. ambassador to Ukraine Marie Yovanovitch delivered to him “a list of people whom we should not prosecute” during their first meeting. To even the most cynical observer of American politics, the idea that career government officials would operate this way seems a little . . . incredible.
And Giuliani didn’t even try to justify the trip on the merits. “There’s nothing illegal about it,” the president’s lawyer told the New York Times. “Somebody could say it’s improper.”
But it’s telling that Giuliani didn’t even try to defend the appropriateness of his trip. He thought that he could rest his entire case on blunt legal technicalities.
Thankfully, cooler heads prevailed and the trip was scrapped. Maybe there are some minimal standards left after all.
We weren’t meant to be a nation of scribes and attorneys, scouring texts for loopholes and dismissing evidence of guilt as “fruit of the poisoned tree.” We are a nation of laws, but not a people of laws. If we’re going to reduce every political question to “who has the legal authority to impose their will” then we might as well let the Harvard faculty figure it out for us.
Somewhere along the way, we all fell for the naturalistic fallacy. Observing political animals in the wild, we concluded, “This is how they behave, therefore it’s how they ought to behave.” Which eventually leads to either madness or ennui.
The legalistic mindset ultimately gives way to a degenerative nihilism. Issues of principle or virtue are transmogrified into questions of standing and authority. We stop asking if X is right or wrong and instead concern ourselves only with whether or not one tribe has the legal ability to force the other tribe to do X.
Let elected officials and the courts concern themselves with the legal limitations of what can be done.
As citizens, we should properly focus on how things ought to be.