Recent events have had me think about the axiomatic expression “hard cases make bad law.” Most, if not all lawyers, are at passingly familiar with this aphorism. But what is the meaning of this expression? A brief trip down history’s memory lane might help.
In 1837, in a hearing in an English court held in Dublin, Hodgens v. Hodgens 4 CI Fin. 323, a wife, wealthy in her own right, left her husband with custody of the couple’s children. The husband, contending his resources were insufficient to care for the children, sought financial contribution from his ex-wife for the maintenance of their children.
Although the law clearly imposed the duty of care for the couple’s children on the husband, the Dublin court ruled in favor of the husband so that children would not become destitute. The ex-wife appealed to London where the House of Lords overturned the lower court’s decision. Lord Wynford remarked as follows:
“We have heard that hard cases make bad law. This is an extremely hard case, but it would indeed be making bad law . . . if your Lordships affirmed this order” Lord Wynford expressed the hope that the wife would still feel bound by “the law of God and nature . . . suitably to maintain those children”; but, as far as courts were concerned, “we have to decide this case according to the law” (Internal citations omitted).
Essentially, some cases present issues and facts that cry for remedy and courts are sometimes moved to bend the law a bit in order to prevent some hardship. The problem is that this legal sidestep in a specific case may auger an advent of generally applied unsound law.
Moving to the United States, in his 1904 dissent in the Northern Holdings case that held against a merger of two competing companies as being per se illegal, Justice Holmes said:
“Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”
One hundred eighteen years ago, Holmes seemed to capture our current situation.
The focus of our current “great case” as defined by Justice Holmes is Donald John Trump, 45th president of the United States. Those who have followed this blog, or have read my other writings over the years, know that I’m no fan of Trump. That’s an understatement; it’s nearly impossible for me to fully describe the breadth and depth of my loathing for him.
Instead, I would like to put politics aside and focus on the application of law in the myriad of legal challenges confronting Trump. Whatever the outcomes of these challenges, future generations will live with what happens now.
As of this post, the most immediate issue emanates from southern Florida, specifically from Palm Beach. It was there that Trump purloined somewhere north of 40 cartons of publicly owned documents and hid them in a storage room in a golf club. Numbered among these were hundreds of pages of classified documents, some among the most secret classification assigned by our government. These highly classified documents contained information directly bearing on our national security.
The previous statements are not hyperbole nor political polemics. These are simple statements of fact.
Moreover, the documents stored at Trump’s golf club were not his, they are ours. Rather than crating and carting them off to Florida, all these documents should have been transported to the Archives for the retention of the public’s property. These are our documents, not Trump’s. That, too, is a fact.
Over the past weeks, much has been made about whether Trump declassified these documents. Those who seek to distract attention away from his possession of these documents and focus our attention onto their classification, or “declassified” status. The fact is, their status doesn’t matter - the mere act of transporting, storing, and resisting their return to the Archives was in itself illegal.
The is no presidential “privilege” that converts publicly owned documents into privately owned documents of an outgoing president for whatever benefit he can derive. That too is a fact.
By all reports of the Archivist’s attempts over the past 18 months establishes beyond serious contestation that Trump acted, and intended to act,
contrary to law. Put in more legalese, he had the mens rea and actus reus to establish that he had the intent and willfully acted in violation of law.
Some of his supporters/apologists assert that because Trump was the president when the documents were crated up, and is currently a former president that has the documents in his possession, he has plenary authority to retain their possession for his personal, as his defenders also assert, benign use.
Claims along these lines are flatly wrong and meant only to distract from Trump’s unlawful possession of these documents. And that is a fact.
Let’s use a hypothetical. During his 2016 presidential campaign, then candidate Trump stated that he was so popular that if he shot someone on 5th Avenue, he wouldn’t lose any of his supporters. I hope we would all agree that randomly shooting someone is a crime. That being true, by our hypothetical shooter carrying out his stated intent, would he have evidenced the mens rea and actus reus necessary to procure his conviction? And if we can agree that the evidence supports charges being brought against him, than would it matter whether Trump was a candidate, a president, or an ex-president when he pulled the trigger?
If you respond that Trump’s status makes a difference in the charging decision, then place yourself in the situation where you’re the shooter. Would your status as a spouse, a parent, or as a previously lawful member of a community make any difference to any charging decision? If your answer is “no,” than any deference to Trump’s status is artificial and designed only to avoid legal consequences of his actions, specifically the theft of public property.
I believe there is sufficient evidence to charge Trump with unlawful taking and possession of stolen public documents. But then that’s not my decision to make. Other facts pertaining to obstruction of Justice and Espionage Act violations would need to be further developed.
In order to gather evidence of possible crimes committed by Trump and to effect the return of the purloined documents, a federal magistrate judge determined that sufficient probable cause existed to support the issuance and service of the warrant to search Trump’s residence/golf club. This much we know. We also know that approximately 20 cartons of documents were placed into federal custody, and we know that some documents held a classifications reserved only for our most sensitive secret information.
Aside from Trump sycophants’ attempts to distract with claims of executive privilege and standing order declassifications, the reaction from MAGAland was as violent as it was predictable. Declarations of “civil war,” “police state,” and “fascist FBI” were only the milder reactions. Death threats were made against FBI agents and their families, and threats were made against the lives of the issuing magistrate and his family.
One denizen of MAGAland attacked a local FBI office using a nail gun. He paid for that with his life proving, if there was any question, that MAGA doesn’t equal MENSA. And Trump posted his greatest hits of “witch hunt” “fake news” and “break in” on his social media website.
As we know, on August 18, the media and an organization laughingly named Judicial Watch, not satisfied that the warrant and inventory had been previously unsealed, petitioned the federal magistrate to unseal the underlying affidavit that provided the probable cause to support the warrant.
To the surprise of many, the magistrate at the conclusion of hearing the media’s and government’s arguments decided that he would entertain release of the redacted affidavit, and gave the government a week the submit proposed redactions for the court’s review. Yesterday, August 25, the redactions were submitted, the court accepted the redacted version of the affidavit and ordered its release for today.
Today’s release of the redacted affidavit falls within the category of “be careful what you ask for, you just might get it.” The timeline and procedures used to recover these documents are damning to Trump. And the volume of classified documents is even worse that thought, with some detailing human and signals intelligence sources.
See the redacted affidavit here: https://s3.documentcloud.org/documents/22267190/read-the-affidavit-in-support-of-the-mar-a-lago-warra. But the question arises as to why release the affidavit at all? In the normal case of an execution of a search warrant, the underlying affidavit is rarely, if ever, released prior to charges being brought. It would, in the usual course of procedure, be released only upon charging a person with a crime, not before. There are valid investigatory reasons for this policy which are easy to determine.
At the hearing, the media asserted the given the controversy caused by serving a search warrant on a former president’s home, there was intense public interest in learning the reason for this unprecedented government action. I’ll speculate that Trump, who did not participate in the hearing, didn’t give a rip about the public’s interest, he only wanted the identity of “snitch” who “ratted him out.”
The cause of the hearing was the manifestation of the “immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”
Yet in this case the court bent, at least in part - albeit a small part - to the media’s request. Trump sat on the sidelines during the warrant hearings, but on this past Monday, August 21, one of his “lawyers” filed a motion before another judge for a “special master“ to review the documents seized by the feds. That was two weeks after the seizure. The filing was a hodgepodge of mis-cited law, extraneous “arguments,” basically what one might expect from a first year law student who massively failed legal writing.
This filing was sooo bad (how bad was it?) that the judge, a Trump appointee, very politely using judicial tones and language basically said “get this hot mess out of here and you’ve until midnight Friday (August 26) to submit a filing I can actually read!”
As was just reported, Team Trump filed the revised brief two hours prior to Friday’s midnight deadline. Evidently it was more difficult than they thought for Team Trump to find someone who knew about subject-verb agreement.
So why, in this instance, is a court bending to accommodate this party when few others would be similarly accommodated? Simple, this party is a former president with a rabid following. Perhaps it is more clear Holmes’s admonition that “great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
In the weeks and months to come there will be other legal issues involving Trump that challenge our legal system. The issue is not what happens to one man, but how much damage can one man, who has inflicted so much damage on our politics, inflict on our system of Justice?
The damage on our politics was not inflicted only by just one man, but also by those who enabled him. So will it be on our system of Justice if the courts do not stand strong and prohibit who the party is from obscuring what the party has done.
We live in an imperfect world with imperfect institutions. Our justice system is imperfect. Too often we see disparities between how members of different socio/economic classes are treated by the law. The wealthy and influential are too often treated with undue deference and respect, while low income persons are often treated with a bare level of regard.
Those with financial resources can secure necessary legal services to represent their interests; those with few financial resources can only access pro bono legal services only if they’re lucky. And studies show, as I wrote about in my book, that those with competent representation fare much better than those who appear pro se before a court.
Our democracy exists on the strength of our laws, their impartial application and administration. The slogan “Equal Justice For All” is the goal to which we all must strive if our democracy is to survive for the benefit of future generations. To stand idly by while one man, solely because of who he was, perverts the course of Justice will be a betrayal of our duty as citizens.
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