Lowering the Bar of Acceptability to Legality
Lowering the Bar of Acceptability to Legality
If you're defending terrible political conduct because it's legal, it's time to raise your standards.
The other day, conservative commentator David French made the below observation about today’s politics. Though he specifically referenced Twitter discourse, the problem he describes also very much applies to the broader internet, cable news, talk-radio, and — as he notes — “real life.”
I suspect from their timing that French’s tweets were prompted by many on the left’s reflexive defenses of John Fetterman and his Senate campaign, following the candidate’s debate performance last Tuesday night. Lots of people who commented on Fetterman’s (clearly downplayed) health-condition following his stroke, and concluded that he wasn’t fit for office, were framed by Fetterman supporters — including some in the media — as ableist (prejudiced against individuals with disabilities).
French has made similar comments over the years about Donald Trump and his loyalists. This partisan inclination is by no means limited to a single party or tribe.
While I often comment that “partisanship is a hell of a drug,” I tend to think the “lawyer” analogy is better. While the irrationality of druggies typically lacks dedication and focus, defense attorneys are known to pride themselves on finding creative ways of rationalizing absurd, unethical, immoral, and otherwise indefensible conduct. And, like partisans, they do so with a direct, singularly-focused sense of purpose: protecting their client.
Such work, in itself, can amount to a high. And after a while, the high becomes a habit.
But I think there’s even more to this lawyer analogy, and it has to do with the nature of so many of the political defenses I hear these days. The innocence of a member of the tribe is far less frequently argued in terms of whether that individual did something clearly wrong, but rather if they did something illegal.
When someone is charged with a crime, and is on trial in a court of law, that makes perfect sense; in fact, it’s the entire point. But determining what is politically acceptable conduct, and worthy of a defense, based purely on whether that conduct is legal, illustrates a profound lowering of our societal standards.
It shouldn’t require criminality for a public official’s bad behavior to be, at minimum, deserving of condemnation. Yet, criminality seems to be the only standard by which many partisans now shape their tribal defenses.
For example, when Donald Trump, as president, held up congressionally-approved defense funding to try and extort political dirt on Joe Biden out of Ukraine's president, the response from Trump loyalists (and I argued with a number of them on this website at the time) was that he had broken no law. He hadn’t been charged with criminal extortion, so what he did was no big deal. Thus, those arguing it was a big deal were doing so in bad faith, and Trump’s conduct must therefore be defended or dismissed.
Likewise, after January 6, Trump was impeached, and publicly identified by top-leaders of his own party as the cause of what happened. But because he wasn’t charged with criminal incitement or criminal insurrection, his loyalists insisted he incited nothing, nor was there even an insurrection. So, again, those arguing otherwise had to be doing so in bad faith.
Even the January 6 committee hearings were subjected to the criminal standard, with the same Trump devotees insisting that hours upon hours of sworn testimony were illegitimate, and should effectively be dismissed, because there was no “cross-examination” of the witnesses, and hearsay was allowed.
Of course, the hearings weren’t part of a criminal trial, just a congressional investigation. There weren’t criminal prosecutors, just members of congress. There weren’t “cross-examinations” because Kevin McCarthy refused Republican representation on the committee. And that “hearsay” testimony that was “allowed”? It was a single answer to a single question about something relatively unimportant.
Again, this happens on the left as well.
Lots of Hillary Clinton fans believe she was dealt some extraordinary injustice in 2016, because the highly publicized FBI investigation into her handling of classified emails may have well cost her the presidency. She was ultimately “vindicated,” after all, being that she was never charged with a crime. While there’s a point to be made about James Comey breaking protocol when he announced new developments in the investigation (shortly before election day), the fact of the matter is that Clinton still did something really quite bad — some would say (and did say) disqualifying for the presidency. Yet, she’s thought of by many of her supporters as an innocent victim who got screwed.
Getting back to John Fetterman, I’m pretty confident that neither he nor his campaign did anything illegal by refusing to release his medical records, pushing the debate back as far as possible (while banking early votes), and grossly misrepresenting his capacity to serve as a U.S. Senator until he could no longer get away with doing so.
It wasn’t just a terrible medical decision for him to stay in the race, and continue campaigning. It was a political sham that has no objective defense — just a partisan one.
But when you view yourself as an unpaid lawyer for your tribe, I suppose objectivity is the last thing on your mind.
"....[criminal] defense attorneys are known to pride themselves on finding creative ways of rationalizing absurd, unethical, immoral, and otherwise indefensible conduct. And, like partisans, they do so with a direct, singularly-focused sense of purpose: protecting their client."
Where did you get this idea? Please provide some examples. That they're known to do this may be true in some circles, but it's largely mythical. I don't deny that sometimes lawyers do this, but usually they're spouting nonsense - falsely bragging at parties or to friends.
Any competent criminal defense attorney knows his audience - in legal matters it's the judge and, in factual matters it's usually the jury. The incompetent ones learn quickly or go into another line of work.
Although an attorney's legal duty is to pursue his client's legal interest "zealously within the bounds of the law [including the cannons of professional ethics]," he knows that this means catering to the judge and the fact finder - in criminal cases, usually the jury. Some say that the certain laws or legal procedures are absurd. But that is an entirely different matter. Any lawyer not taking advantage of a law or legal procedure favoring his client is committing malpractice. Trial judges are under oath to apply the laws even if they ardently disagree with them.
Judges are not fools. Neither are juries as a whole (generally speaking) - I know from personal experience that when they deliberate they collectively exhibit seriousness of purpose and wisdom. Any attorney who argues for a legal ruling that has no (legal) reasonable basis not only sullies his reptation to that judge he is also subject to sanction. Any criminal defense attorney who argues absurd facts to a jury to get his client off, usually appears a fool to the jury and the presiding judge.
If the facts and the law are against a client, his attorney will almost always urge him to accept a settlement that lessens his damages. Sometimes a criminal defendant will not accept his attorney's stern advice. Not infrequently, a criminal defendant will urge his attorney to tell the jury an absurd rationalization of his behavior that legally exonerates him.
Because a criminal defendant has an absolute right to testify and because a criminal defense attorney may not betray his loyalty to his client, the criminal defendant can say anything he wants to the jury., only subject to cross-examination by the prosecution Whether his attorney supports the defendant's absurd rationalizations to the jury in closing argument is a professional judgment he must make. If he does so, he struggles to keep a straight face before the jury - to say he is proud of this, defies logic.
If a criminal defense calls other witnesses or tries to introduce exhibits into evidence that "...rationaliz[es] absurd, unethical, immoral, and otherwise indefensible conduct.," he certainly know he is making a fool of himself. He's undoubtedly not proud of this, and would rather his client accept a plea deal.
As for a criminal defense attorneys "...finding creative ways of rationalizing absurd, unethical, immoral, and otherwise indefensible conduct....", they frequently use such conduct as a sacrifice for criminal conduct, e.g. "My client was a poor - perhaps even abusive - husband and a terrible Father, but that is completely different from being a murderer - the evidence does not show that he killed his wife."
The juxta position is that, in the court of public opinion, talk is cheap - VERY cheap. It's not uncommon for lawyers in high profile cases to blather nonsense before the public, nonsense that they would have the good sense not to spout in court - except that a few lawyers, like Rudy Giuliani and that chick who worked for Trump, get so intoxicated by their BS that they forget their audience or their professional obligations when they enter a courtroom.
Likewise, politicians and other public figures can and not infrequently do "find[] creative ways of rationalizing absurd, unethical, immoral, and otherwise indefensible conduct...." Their statements are frequently aimed at a particular demographic of voters. Given the increasingly tribal nature of politics, this conduct is often effective. Their comments are not subject to a controlled and rigorous cross-examination. They are not accountable to a judge, a jury or to the rule of law.