David J Black

It goes without saying that all those who are in the business of dealing with the intricacies of legal process enjoy harvesting the ripened fruits of historic precedent. These can go back a long way, but not often as far as the 5th century BC, when Sun Tzu, author of The Art of War, recommended building a “golden bridge” to grant one’s adversary a face-saving exit strategy.

There is a much more recent one, carefully crafted by Baron Montesquieu in his Spirit of the Laws (1748): the doctrine of the separation of powers. This seeks to ensure that the principal institutions of a state, namely executive, legislature, and judiciary, should be formally divided to safeguard the liberty of the citizen and discourage any wanabee tyrant.

Has anyone told President Biden about such things? It seems not. This is a pity, since Article III of the US Constitution, a cornerstone of America’s “more perfect union” as envisaged by the original framers, guarantees the independence of the judiciary and normally prohibits any interference by the executive – in this case Joe Biden – in the conduct and functioning of any business rightly belonging to the courts. In extenuating circumstances, such as a war, a president my exercise a prerogative, as Lincoln did during the Civil War, and George Bush (at times controversially) during the War on Terror, but America is not currently at war with any other nation, so the usual checks and balances should apply.

Admittedly, the principal of the separation of powers is not absolute. Consider the curious custom whereby a president demitting office may grant executive clemency to anyone subject to indictment, much as the amiable Gerald Ford did for Richard Nixon, or George W Bush for former vice-presidential chief of staff, Lewis ‘Scooter’ Libby, after he had been imprisoned for perjury. It isn’t always the elites who benefit. Donald Trump reportedly granted 237 pardons on leaving office, the majority of them to common or garden felons, though he didn’t forget old pals like Roger Stone, Paul Manafort, and Charles Kushner.

In President Biden’s case, however, the exercise of executive prerogative has arguably been exceeded thanks to his off-the-cuff statements which would seem to advocate regime change in the Kremlin, among other things. Whatever Vladimir Putin’s character defects, heaping bile and opprobrium on him will never bring him to the negotiating table. By damning him as a “genocidal butcher” (even if he is) President Biden has, at a stroke, wrecked all prospect of a face-to-face meeting with Volodymyr Zelensky. The war in Ukraine will continue. Thousands will die.

Most of us, I don’t doubt, will agree with the sentiments he has been expressing with such gusto, but prima facie evidence of unlawful Russian aggression notwithstanding, these stump speech denunciations by the leader of the free world merely undermine any prospect of a negotiated settlement and feed the paranoid narratives of the Putin regime. When others, such as Gordon Brown and Boris Johnson, endorse him without qualification, they merely play to Putin’s strengths as an imagined strong man. Destroying Sun Tzu’s golden bridge is not helpful.

In the interests of the proper administration of justice such matters lie with an independent judiciary. Arguably, the US President’s barnstormings are a de facto abuse of the executive prerogative. Such recriminations, justified or not, should be dealt with by international legal experts like Matilda Bogner, head of the UN Human Rights Monitoring Mission in Ukraine, or Philippe Sands, director of the Centre on International Courts and Tribunals at University College London. These are the people who can present evidence to an appropriate court which can then reach a determination unprejudiced by inflammatory political comments. The legal certainties are thus upheld, and justice thereby served.

In the exercise of diplomacy restraint, civility, and politeness should never be mistaken for appeasement. On the contrary, as far as conflict resolution is concerned these can be much more effective than the thoughtless hurling of insults or the impromptu barracking of a foe – even a villainous foe.

It was, after all, a US president, Theodore Roosevelt, who offered particularly sound advice on this very matter. Speak softly, but carry a big stick.