Judges love precedent. Nothing comforts them like knowing that their actions reflect a traditional, sensible, time-tested approach to a problem.
This comfort is sometimes provided by cases. In other instances, however, this comfort is provided by history itself. This chapter explores how to build effective historical arguments.
For instance, recall that Chapter 2 of this book presented a motion filed by President Bill Clinton that began, “For the first time, a sitting President has been subpoenaed to testify before a grand jury.” Most judges would not want to be the first jurist ever to order a president to testify. Do judges ever have this power?But imagine that any of the following (hypothetical) facts were true:
· Contrary to the president’s claims, courts have ordered six presidents to testify before a grand jury.
· Alexander Hamilton, James Madison, George Washington, John Adams, Thomas Jefferson, and sixteen delegates to the Constitutional Convention agreed that it was “obvious” that federal courts had the power to order presidents to appear in front of a grand jury.
· English courts, on more than a dozen occasions before the Constitution was ratified, ordered prime ministers to testify in court.
These statements are mere fabrications, but they illustrate how history can be weaponized: they provide an alternative type of precedent. The past is a tool for persuasion — just like facts, cases, statutes, and policy arguments.