Hard cases shouldn't force anyone to make bad law

Is Bill Barr a bad man?

Lawyers have a saying: Hard cases make for bad law. In other words, the more unusual and extreme the circumstances, the more damaging the precedent it sets for all the other cases to follow.

 

Barr and the others should have realized that Trump is as hard a case as there is.

You were never going to preserve the integrity of the presidency by defending the least honest, most reckless example of presidential leadership we’ve ever seen. You can’t shore up the institutions of government by enabling a man who wants to dismantle them.

Trump isn’t the case you seize on to uphold precedent. He’s the case you call an outlier and toss aside.

Look, I will give this particular writer (Matt Bai) a lot of credit for basically being honest about what he expects. However, something tells me that he doesn't necessarily view his own argument the same way that I (or many others) see it. The bottom line is that Bai quite literally argues that we should ignore whatever good precedents there are, replace them with bad precedents, in order to allow the means to be justified by the ends. This is the argument that many try to make without actually coming out and saying it. These people pretend (somehow) that what they are arguing is within the norms, when it's extremely clear that it's not. There is sort of a wink, wink, nudge, nudge sort of deal going on with it. This writer is being honest.

Now Bai sort of ignores the concept that by bypassing a legal norm (or precedent) that you are basically creating a new one. He appears to believe that you can pick or choose your precedents based on whether or not you fundamentally agree with (or otherwise like) the person you are looking to charge. You ignore the legal norms and legal precedents "this time" (or toss them aside as the article states) and then just go back to them "next time" like nothing ever changes.

But the "old saying" is much more realistic in actual legal world. Once you have changed your legal standards for one instance, it will be forever judged for anything coming after it. I look back at the 2000 USSC example of Bush v Gore, to find something that no matter how hard the court tried to argue that this was about the FSSC ruling (and not law in general), it was never going to be viewed that way.

The coldheartedtruth here folks is that if you want to impeach or indict President Trump for whatever actions you believe he should be impeached or indicted for, they will have to be judged exclusively by the norms, precedents, and known definitions of the law. The fact that he is President and it becomes a political process as much as a legal process, actually demands we are more strict in following norms and precedents in order to effectively eliminate as much political opinions as you can.

• If no other American Citizen has ever been charged with Obstruction because they tried to control a media narrative, then you cannot charge this American citizen. 
• If no other American Citizen has ever been charged with a crime for excessive Tweeting, then you cannot charge this President.
• If no other American Citizen has ever been charged for the actions of other people, then you cannot charge this American citizen. 
• If no other President has ever been charged with Obstruction for using a Pardon during an investigation, then you cannot charge this President simply for bringing them up. 
• If no other President has ever been charged with a crime for firing a subordinate appointment, then you cannot charge this President.

However, what this writer is arguing, is that Trump is "otherwise" such a bad actor that we shouldn't make these sorts of arguments in his defense. The concept, quite frankly, argues that Barr shouldn't defend the norms of the law, or argue that we should abide by precedent, because the end result is that those arguments work to defend the "least honest" and "most reckless" behavior of a President that "we have ever seen". Rather, we should pretend that such norms and precedents don't exist, and simply charge "this" President in spite of them. 

Not because the actions deserve it, but because the person deserves it.

Now the other significant problem with this issue (other than the willingness to toss aside any and all legal norms and precedents in order to "get somebody") is that the reality that this is the "least honest" and "most reckless" President is a matter of personal opinion. It certainly isn't something that can be objectively "proven", especially considering most people don't remember more than handful of Presidents. Trump is the forty fourth President, and to declare that he is the most "anything" of all Presidents seems pretty silly and premature (considering he has been President just over two years). 

Trump has not led us into a war (as many Presidents have). He has not led us into a depression or recession (as many Presidents have). He has not pushed a radical agenda (as many Presidents have). He has not created a list of enemies, he has not been secretly negotiating arms for hostages, he did not secretly provide palettes full of cash to an enemy, he has not sold arms to terrorists, he did not oversee an unwarranted investigation into a political opponent, he has not had twenty year old interns give him head in the oval office, he has not blamed a Youtube video for an act of terror against an American embassy, and he certainly did not demand we knew where the WMD were to justify an invasion of another country.  

In many ways, this President has done very little "other" than work hard to push the agenda he was elected on, attempt to make good on his campaign promises, and do what he said he would do by acting in a somewhat non-conventional manner. A case in point would be his recent hard line negotiations with Mexico that made so many conventional thinkers shit their pants, but all ended up good in the end. 

So while it's dangerous at any time to argue that standards, norms, protocol, rules, and precedents should not be followed because the person you want to go after legally is an exception, it's even more dangerous to make that argument of an exemption over political differences and personal dislike of the President's personal behavior. 

But again... I give Matt Bai many props for his honesty, even if his overall argument is shit.