Jack Smith, Donald Trump, and the Kobayashi Maru

How Should The Rule of Law Approach No-Win Scenarios?

Every now and then I get to give the Kobayashi Maru speech to a young associate. There are two types of young associates: those who immediately know what I am talking about when I mention the Kobayashi Maru speech, and those who stand there, deeply concerned, wearing a tolerant-of-this-Boomer1 expression but completely mystified by the reference.

The Kobayashi Maru speech is about no-win scenarios. The life of the law is full of them. Good lawyers can often avoid them or mitigate their impact, or negotiate a resolution that makes them unnecessary, but can never completely eliminate them. Sometimes you are going to lose. Sometimes you KNOW you are going to lose. This concerns young associates. Ken, they say, we’re going to lose this motion. What am I supposed to do? The answer is that you prepare competently, advocate vigorously, and fight for your client’s rights. You act like you have a chance because the client needs you to do that and the system depends on you doing that. You act like you have a chance because doing a vigorous, competent job can preserve your client’s trust in you, ease the impact of a loss, and sometimes even achieve a seemingly impossible win.

I’ve been thinking about the Kobayashi Maru speech since Trump was indicted.

Yesterday, on our Emergent Situation Episode of Serious Trouble, Josh and I sparred a bit over the moral and political philosophy of Jack Smith’s decision to prosecute. I pointed out that the somewhat predictable assignment of the case to Judge Aileen Cannon — who proved herself to be an arguably lawless Trump partisan when she entertained his attempts to derail his own investigation — will make it extraordinarily difficult to convict him. If Judge Cannon presides over the case she can derail the prosecution in myriad ways, some of them unreviewable, if she wants to. Moreover, there’s reason to doubt that a Florida jury will convict Trump. Finally, and perhaps most importantly, striking Trump down with a federal indictment may make him more powerful than we can possibly imagine. Trump will use the prosecution to energize his base, propagandize “independents,” and fundraise from rubes. It’s very possible it will make it easier to win the Republican nomination and plausible it will help him win the Presidency, which he will use to pardon himself and further demolish the rule of law.

Does that mean that the Department of Justice shouldn’t do it? To quote a bit of our argument:

Josh Barro:

Well, I mean, that's a philosophical question. And I guess it might be there are other scenarios where it doesn't go exactly in the way that we're describing here, but we just sketched out a scenario in which this action by the Justice Department fails to uphold the rule of law and actually undermines it. I guess this is a question of whether we have a consequentialist ethics, but it's the idea that you must do this because you must do it out of fealty to the rule of law. That assumes a certain moral framework. I'm laying out a possibility that in fact this is quite damaging to the rule of law, or that you've described that it's likely to end up with an outcome that's quite damaging to the rule of law.

Ken White:

Well, I disagree and here's why. The rule of law doesn't mean that everyone is always going to do the right thing. The process of the rule law presumes that sometimes there will be bad actors. Sometimes jurors will nullify for bad reasons. Sometimes judges will make bad calls. The rule of law is about we have this system, it's imperfect, we're going to put the person through the process because that's how we do things. And so, ultimately, even if you think you might get a bad unfair ruling, what you do is you put it through because you want to demonstrate that no one's above the law. And so, we have to take the shot. And because if we don't, because if you don't pursue a criminal because the criminal has put a crooked judge on the bench, then you're really completely giving up.

Josh Barro:

Right. But the Justice Department makes strategic decisions all the time about what crimes not to charge. And I mean, in this instance, even if you're thinking about holding Trump accountable, they have a parallel investigation into matters related to January 6th that presumably would be charged in Washington DC if it were ever charged. If you're looking at a situation where you have a menu of options about what you can charge someone with, all of the stuff we're describing here, those sound like considerations that would weigh in favor of prioritizing the January 6th prosecution, trying to move that one first.

So who is right? If charging Trump with overt, obvious crimes is doomed to fail for political reasons and may have negative political effects, should the Department of Justice do it?

Let us start, as you would expect, with pedantry. What do the rules say? The rules pretty clearly say that if political and other non-legal factors suggest prosecutors will lose a righteous case, they should bring it anyway. From the Principles of Federal Prosecution in the U.S. Attorney’s Manual:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

But what about when a potential defendant’s popularity, or the unpopularity of the particular rule of law, makes getting a conviction difficult? The rules address that:

Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.  For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.

So the Principles of Federal Prosecution suggest that if Jack Smith thinks that if Trump’s prosecution serves an important federal interest (it does) and the evidence is objectively factually and legally sufficient (it is), then he’s bound to bring the case even if Trump’s popularity makes a unanimous verdict difficult, risks a partisan judge, and threatens political upheaval. As Josh suggests, Jack Smith can and should make strategic decisions about what approach is soundest and most likely to lead to conviction. But the indictment in this case is overwhelmingly strong - one of the most devastating on its face that I’ve seen in my career. If Jack Smith can prove those facts, that is far more than enough to convict Trump. The only arguments against it are political.

In my view, it’s also the morally and philosophically correct course.

First, jury nullification can be a force for justice and a bulwark against tyranny. It can also be an expression of ignorance and bigotry and an expression of injustice. Prosecutors should consider justice but not be deterred by the chance that jurors should be unjust. Anything less means that you let jurors decide who is or isn’t protected or bound by the rule of law.

Second, some judges will always be partisan, and some politicians will seek to appoint or elect partisan judges. It’s not fair. But nobody promised you it would be fair. Deciding not to prosecute because of the risk of biased judges cedes justice to them and also relieves them of the consequences of being biased — public opinion, opinion of their colleagues, reputation, and legacy. It lets them be biased cost-free. If you confront bias, and force judges to be biased in the daylight, it’s harder for them, and social and cultural factors may deter them.

Third, it’s corrosive and unjust to say that we won’t hold people to account because they are popular and powerful. The system doesn’t need more of that, thank you, we’re all stocked up. It’s already a fact, we don’t need to make it a policy as well. Strongmen already fare indescribably better than normal citizens when facing the justice system. Going full-on junta and making it an official principle of prosecution not to prosecute the powerful means abandoning even an aspiration of equality before the law.

Fourth, yielding to people who say “if you punish me or my friends for breaking the law I’ll hurt you” is a terrible way to run a society. It’s governance by thugs. If someone says “if you apply the rule of law to hold me accountable for my conduct, I will later abuse the rule of law to punish you,” you know that person is a dishonest, dishonorable partisan. There is no rational basis to believe that a dishonest, dishonorable partisan will ever behave well. In other words, the proposition “Trump and his cronies will abuse the system if we prosecute them, but if we don’t, they will behave” is deeply dubious. Paying the Danegeld — whether in coin or in abandonment of principles — doesn’t deter the Danes from reaving any more than throwing bacon at a dog makes it run away. To the contrary, abandoning the rule of law to avoid angering Trump and his ilk makes them bolder, not more compliant.

It’s popular to say America’s in civilizational decline. It’s possible; I don’t know. I’m skeptical of narratives that make us extraordinary. But I know this: if we’re going down, we should go down swinging, not cringing. Donald Trump boldly, gratuitously, arrogantly broke the law. He’s bragged about being able to do so without consequence. He’s not being persecuted, he’s being provided with due process that will give him myriad ways to defend himself and vindicate his rights, and his vast resources make him uniquely suited to do so. If the Department of Justice doesn’t take the shot, then what’s the point of it?


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