Farewell to Fair Play: Once Upon a Time Our Tradition Was To Choose the Right Course — Even When Not Required

You have heard the old witticism that a grand jury will indict a ham sandwich? That is, that in the right mood, a legal authority will go after anything. Yet actually convicting ham sandwiches is not the American tradition. Throughout most of its history America has benefited from the adherence of its leaders to a spirit of fair play.This goes beyond abiding by the written laws, or the Constitution. American tradition also includes taking the right course of action, doing what is in the best interest of the Country, even — or especially — when not legally required. Examples of this kind of behavior, which is probably necessary for a smoothly functioning republic, would include Richard Nixon’s decision not to challenge the presidential election results of 1960, despite ample evidence of electoral mischief in Texas and Illinois.As Nixon recalled in his memoir, “Six Crises,” it was important to accept defeat graciously. There could be “no worse example for nations abroad,” Nixon said, “than that of the United States rangling over the results of our presidential election.”President Gerald Ford’s decision to pardon Nixon is another example. Ford’s action worked to his own political detriment, rather than take the country through a bitterly divisive trial. Yet another example, from an unexpected quarter, would be President Trump’s decision not to prosecute Secretary Clinton for erasing thousands of emails in violation of a valid subpoena. Despite the chorus of “lock her up,” Trump recognized that this would be a divisive undertaking and wisely passed.President Ford on September 8, 1974 granting President Nixon ‘a full, free and absolute pardon.’ APAll of these acts reflected a spirit of fair play rather than strict adherence to any law. In each case the protagonist exercised a form of prosecutorial discretion, too often absent from today’s prosecutors, in favor of maintaining civility in the body politic. There are some things you simply don’t want to put the country through, even if totally “legal,” if you want to maintain enough patriotic cohesion to function.A corollary to this is the old jurisprudential Rule of Lenity, which holds that in a legal proceeding, any ambiguity in respect of the law, is interpreted in favor of the accused. Justice Neil Gorsuch just cited the rule of lenity in the case of an Indiana mayor accused of taking bribes. In the case of Trump’s own legal cases the rule of lenity would suggest any ambiguity goes in favor of the 45th president.Yet at this point the Democrats appear to be abandoning these rules — written or unwritten — in their lust for power or their fear of what will happen to them if the tables are turned. Trump may not be the most agreeable character but roughly half the country voted for him in 2020. At least as many appear to support him in 2024.To concoct far-fetched legal arguments to interfere with his electoral prospects is a clear, and troubling, departure from the norms of behavior of the past 160 years; dating from the end of the Civil War. This is not an argument for Presidential immunity. It is an argument that, in the interest of civil harmony, only the most egregious charges ever be leveled at a presidential candidate.District Attorney Alvin Bragg at New York on April 4, 2023. AP/John Minchillo“Egregious charges” hardly characterizes the case mounted by the Manhattan district attorney, Alvin Bragg. The allegations seem to have come from the Lavrentiy Beria legal code: “show me the man and I will show you the crime.” The goofiness of Mr. Bragg’s case is not the point here. Suffice it to say there was nothing in those charges remotely serious enough to warrant a fundamental change in how we conduct the politics of the nation.It isn’t only Mr. Bragg’s legal theory which is unique, it is also the first time the legal system has been mobilized to handicap a presidential candidate. Which takes us back to New York. Apparently in New York, with the right judge and cabal of overzealous prosecutors, one can get a petit jury to convict, so to speak, a ham on rye that a grand jury has indicted. It’s sad to see a long and healthy tradition of political fair play and judicial restraint traded in for a ham sandwich.

Farewell to Fair Play: Once Upon a Time Our Tradition Was To Choose the Right Course — Even When Not Required

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