Unprecedented Situations
I am a recruiter by trade and I am currently recruiting for a role that involves a heavy focus on contract negotiation and vendor management. With that in mind one of the questions that the client is probing is how folks navigate unplanned or unanticipated contingencies at a vendor meeting. Regardless of how much you prepare for such meetings, something will always pop up.
My client, in their formation of the question sees two options in such a situation. You either go with your gut or you use the processes and best practices of the firm. The question to the candidate is: How do you navigate such a situation? Do you embrace your gut or the firm’s best practices?
Most of the folks I have asked in my initial screenings have responded that it all depends on what the challenge is. That is their first response. Interestingly, however, most will as we proceed turn to the best practices for any serious matter. They end on the side of caution. Meaning that for the most part, they will consult, and work through proper channels, appeal to and consider whatever relevant best practices the firm has in place.
This evening though as the cable news channels continue to cover the New Hampshire primary happening tomorrow, I ask how is this happening? As I watch the coverage, my mind flashes to the hypothetical. How is it that a guy who has been charged with 91 felonies will most likely sweep this year’s primary season and be the Republican candidate for President? How is that such a candidate will largely have this locked up before Super Tuesday even happens?
And part of the common refrain is well, hell, it took prosecutors two years to even arrive at those felonies. That delay points not to a desire for justice but rather that they just want to remove him from the ballot.
And it is here that I go back to the hypothetical I began with. If confronted with an unusual unplanned contingency, if some kind of weird shit happens, how do you deal with it? Do you go with your gut, or do you embrace best practices?
Well guess what, our best practices really do not prepare one for arresting, charging, a former President of the United States. That is not part of anyone’s best practices. Oh yes, all are equal before the law, but this is the President of the United States. We do not prosecute such a man. Do we? It is unprecedent and precedent is key to our system. Yet here we are. After two years of going back and forth between our guts and our processes and having no precedent we have arrived here. That is what we have witnessed.
The only one that ran to prosecute was Fani Willis. It appears she might just go with her gut routinely. And that might just kill her case. Everyone else considered the matter, reflected upon it, and thought better of it until they finally decided they had to proceed. The process, the law, was always there. It was just that it took those prosecuting the law two years to arrive at this unprecedented situation.
It is almost like the police in Uvalde who could believe they had an active shooter in their elementary school. But they did. It took them over an hour to finally go in there and deal with the matter, killing the shooter. It took us two years to initiate and prosecute these matters. For two years it was obvious, yet it was not. We just never considered such before. Trump joked about such things during his 2016 election campaign-that he could shoot someone in the middle of 5th Avenue and get away with it, but no one seriously pondered it.
It did not help that Gerald Ford pardoned Nixon before any prosecutor had a chance to ponder such. And Ford’s rationale? To allow the country to heal. And the message that sent? To prosecutors it said that you really do not want to drag the country through such a trial. It is best not to pursue such things. That is the closest thing we have to a precedent here.
The thing is that Ford’s rationale for the pardon has little to do with the law. It really has nothing to do with the law, but regardless, Ford, as President, as the head of the American justice system at that time, made that decision to pardon. What was the Justice Department to do with that? They have since 1974 been pondering that pardon and the rationale for it, trying to create a set of processes, a set of best practices to accommodate future incidents of that nature, God forbid they find themselves in such a predicament. I suspect that prayer plays a key role their best practices here.
We also did almost prosecute Nixon’s Vice President, Spiro Agnew. Rather than go to trial, he made a deal. He agreed to three years’ probation and resigned. That was it. He, like Nixon, also avoided trial. That deal reinforces or perhaps set some kind of precedent for what was to shortly happen with Nixon-the avoidance of prosecution. Looking at these two cases, it seems that the best practice, the precedent even, is to not prosecute, based upon Ford’s pardoning of Nixon, and Agnew’s plea bargain. In short, we should avoid legal proceedings against the President.
Where do arrive? At the Supreme Court and the question of whether the President is immune from prosecution. I am suggesting above after all that we have in our practices largely arrived at the conclusion that Presidents are immune and that is why it took two years for Garland and others to get their heads kind of around these matters. This is not a legal precedent but a best practice. Perhaps simply a practice, a practice that needs to be seriously looked at. Hopefully, the Supreme Court will in its ruling rectify this as the practice challenges the idea that all men are equal before the law. And regarding using one’s gut? Well, this is not Diehard.
