Trump does not have the requisite respect for the rule of law
Bob Bauer, who was a White House Counsel to Obama, wrote a Lawfare post Thursday about a then-potential pardon for Arpaio.
Any president considering a pardon in the normal course would solicit and make publicly available the recommendation of the Department of Justice. The Department, however—and here we are speaking specifically of Trump’s Department—secured the very conviction for criminal contempt that would be the subject of the pardon. Now, a president can ignore the departmental recommendation: The power is his, of course, and not the Attorney General’s. But presidents are sensitive to the Department’s recommendations, and for good reason. The pardon power sits uneasily with the belief that ours is “a government of laws, not of men,” and the DOJ’s participation is one check on the abuse of this extraordinary authority. In answering the call for public accountability President Trump would have every incentive to involve and obtain the support of the Department. His failure to do so, or his proceeding over the Department’s objections, would ring a loud alarm.
What’s that deafening noise I hear?
The White House Counsel preparing the pardon papers would also need to labor hard, and would inevitably fail, to to bring this potential grant within the accepted norms for the grant of pardons. Among the more conventional considerations: the case is fresh, and with Arpaio’s lawyers readying the appeal of a decision issued in July, the president would be intervening in the middle of a legal proceeding yet to run its course. If Trump just jumps in and by executive fiat ends the matter, a pardon will have every appearance of being direct interference in the administration of justice. In his capacity as the Chief Executive, the President has already had exceptional difficulty grasping and respecting the independent and impartial operation of federal law enforcement. With this act, Mr. Trump dramatically escalates the assault on these limits.
He likes doing that. He thinks it’s cute.
Then there is the large and more basic question of the purpose behind a grant. It does make a difference why a president grants a pardon. It is an act for which he or she is accountable under the Constitution: As Justice Holmes stated almost a century ago in Biddle v. Perovich, the pardon power is “part of the constitutional scheme,” to be exercised in the advancement of the “public welfare.” Or as Alexander Hamilton argued it in Federalist No, 74, it is a “benign prerogative” in the interests of the “tranquility of the commonwealth.” Like all of a president’s actions, its use is subject to the overall commitments entailed in his oath of office.
I’m not clear on what that means, or what “accountable under the Constitution” means. I’ve seen other lawyers say the pardon power is absolute. If it’s absolute it can’t be subject to the overall commitments entailed in his oath of office or accountable under the Constitution. Maybe lawyers aren’t entirely clear on it either, because nobody has used it in such a defiant way before. (Although surely Ford’s pardon of Nixon must be a rival. I never did understand that.)
Hamilton assured his Federalist readers that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution,” “prudence and good sense,” and “circumspection.”
Good god, whatever gave him that idea?
When Trump asked, “Do people in this room like Sheriff Joe,” he was quite explicit about the very defined political audience for the pardon—the “people in this room.” He paid little heed to the seriousness of the matter in declaring that Sheriff Joe was “convicted for doing his job.” That, of course, was not the reason that Arpaio was convicted, and it is beneath the dignity of the country’s Chief Executive to yet again demean and ridicule a court in this fashion.
Very nearly everything Trump does is beneath the dignity of the country’s Chief Executive. He might as well be wearing a clown suit 24/7.
If the President does pardon Arpaio, he may do so in the belief that it will be all political gain and no cost. He will be wrong. An act of this kind cannot fail to affect Mueller and his team as they investigate obstruction of justice and evaluate evidence bearing on the President’s motives and respect for law. Trump will have added more telling detail to the picture prosecutors are piecing together of “how he operates.”. Congress may now or in the future also have occasion to conduct its own inquiry.
And while the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.
I hope so. I hope the outcome will be that, as opposed to a lawless authoritarian immovably in power.
Since I’m not an American, I sometimes find the construction of governmental entities and the way powers are distributed a little confusing. But something I thought I had understood before 2016 was the idea of the balance of those powers, the three branches of government of the executive, the legislature and the judiciary all in a kind of tension where each one can act as a brake on the other two. But increasingly it seems to me (as a foreign national who lives here) that ‘balance’ relies on good faith actors in those three branches.
Republicans had already made great strides in breaking Congress to the point where it was barely functional before Trump came along. And Mitch McConnell had dented if not broken the Supreme Court and the judiciary, by deliberately blocking or slow walking Obama’s nominees. And now they have a man in the Oval Office for whom rule of law happens to other people, and who genuinely appears to believe that he has almost total authority (though weirdly he usurps himself by cravenly delegating responsibility down the chain of command for military decisions) they are going to break the presidency.
I guess the limits of the pardoning power have never been extensively tested because there’s never been a President with such casual disregard for rules, laws and established norms. Even Nixon was not so utterly adrift. The pardoning of Nixon was before I was born so I don’t know much about how it was viewed at the time but I know Ford’s approval rating went down the toilet as a result. I don’t get the sense that the power itself was widely discussed but I could be wrong, I wasn’t there and it’s not an easy question to answer with the Google machine.
But damn it, it needs to be discussed now. It’s an insanely asymmetric power if it is absolute, and if it is not, the restrictions upon it and the punishment for misuse need to be codified. I imagine that ‘accountable under the Constitution’ meant that Congress is supposed to apply the brakes to a President who is not using the pardon appropriately. But without a standard to apply and with a spineless, self-interested Congress that refuses to exercise that power, the pardon becomes de facto absolute even if it was never intended to be so.
I don’t know where the US goes after this. The system is being tested to breaking point and the question is will it snap or snap back?
Claire,
Democracy relies on ‘good faith actors’. Americans, have from time to time, informed me, confidently, that their Constititution ‘guarantees’ numerous civil rights. My reply is always that any constitution is simply a document without the will to enforce its provisions. There are many examples of uniformed men in tanks ‘suspending’ democratic constitutions. The concept of the separation of powers is not an American invention, it applies to parliamentary systems as well.
Conservative politicians often attempt to undermine democratic institutions, perhaps those in the US Congress regard Trump as a useful blunt instrument. So they might not be as spineless as they appear to be.
The dilemma for the US appears to be the practice of electing a quasi monarch, occasionally the Americans find that there’s a Commodus in the Whitehouse. Of course the US will ‘snap back’, any other possibility is too alarming to contemplate.
Right now, it looks to me that it would not be so much of a snapping back, in that It’s going to take time for a) Trump to be removed, b) Pence to be voted out (assuming Trump’s removal results in Pence stepping in via the normal route of succession, c) safeguards somehow figured out and put into place to prevent this kind of governmental disaster from happening again. Part of the problem is that a much-too-large number of the US electorate think Trump is just fine and see none of this as alarming or abnormal. One can only hope this number is shrinking. So, any “snapping back” is going to be slow, in a geologic comparison more like isostatic rebound than a nice springy elastic.
https://en.wikipedia.org/wiki/Post-glacial_rebound
Ophelia, I guess it’s stating the obvious to say that Hamilton couldn’t imagine it being any other way because he and his peers were all educated thinking fellows that adhered to strong ethical and moral frameworks (as they saw them). I suspect he would be quite bewildered and horrified at the thought of someone as demonstrably unqualified as Trump being President. I’m sure if he were still around we’d hear the scrabble of quill on parchment as he drew up the articles of impeachment.
Claire, RJW, another thing that democracy relies on is education. And I don’t just mean having degrees, because many of Trump’s supporters have degrees (often in business, which is an easy degree to isolate yourself in, so you don’t have to hear uncomfortable truths that might shake your foundations). I mean a civic education. In the early days of our democracy, there were soap box orators, there were Chatauqua speakers, and there were newspapers that people read. There were books in rough hewn farmhouses where poor people lived, books including things like Shakespeare and other classical works. People would go in the hundreds (sometimes thousands) to hear a good speaker, even one they disagreed with. It was the best game in town. And people would cluster at the local coffee shop and discuss politics over pie and coffee. Were they always right about what they knew? Of course not; who is? Did they always vote well? Of course not, look at some of the people we’ve had in office in the past. The actual educational process was self driven, but it was impassioned. And there wasn’t this idea that they had rights without responsibilities. I suspect that is one thing the framers of the Constitution would be the most horrified about – the idea that our rights absolve us of any responsibility to observe or even acknowledge the rights of others. (I realize they didn’t acknowledge the rights of people of color or women, but they did recognize that they had a responsibility to their fellow man at least).
From the OP:
I can’t speak for the author of that article, but I would presume that he means that Congress can retaliate by any or all of (1) refusing to pass the President’s legislative agenda; (2) refusing to confirm his nominees; (3) refusing to fund some or all government activities; and (4) impeachment and removal from office.
I think when people say that the pardon power is “absolute,” they mean that a particular pardon decision cannot be reversed or overturned by the courts or anyone else. They don’t mean that the decision is free from consequences. (The analogies to free speech should be apparent.)
My maternal grandfather was a Chatauqua lecturer, and the editor of his small town’s newspaper. (Also Democratic candidate for governor in 1926. He lost, naturally – it was 1926.)
Iknklast,
I’d agree with your comments on education. Certainly anyone whose knowledge is confined to their formal education is an ignoramus. Even academics ‘don’t know what they don’t know’. Unfortunately we live in an age of the specialist. Who is going to pay for a liberal arts or social science course if it doesn’t help in getting a job? Years ago, when university education was free in Australia, I got a BA in international relations and a masters because the subjects were interesting. These days I would have to pay.
The self-improvement phenomena wasn’t confined to the US. In the 19th century when most people had no chance of attending university they often were educated at ‘mechanics’ institutes or they had their ‘conscious raised’ by political movements.
I’m a business school graduate, btw. The problem is economics, despite all the mathematics, it’s the least scientific of the sciences and the most vulnerable to ideological influence.
Oh, RJW, I didn’t mean anything against business graduates; I guess I could say #NotAllBusinessGraduates ;-)
My dad was a business graduate, and he is a very eclectic reader. In spite of that, he manages to be someone who would be sympathetic with a lot of what Trump says, even though he finds Trump’s vulgarity distasteful.
I myself am a very eclectic reader, and find that it isn’t really hard to learn enough about an issue to make a reasonably educated vote, even though things are rather complex in general. Of course, you can’t find out about everything, but you should be very careful about voting on things when you haven’t bothered to read at least something about it, and find out what the major issue is about.
When 95% of the adult population gets both their history and their science from popular media, then we’re in trouble. There is some really good stuff in popular media, but there’s so much bad stuff, it can be difficult to sort out which is which, so people tend to believe what makes them happy or what they agree with. So we get this ignorant population (on both the left and the right – I don’t think it’s alt right that are sticking jade eggs in their vaginas!). And there is a lot of willful ignorance, too. I have had people tell me “well, you might be right, but I choose to believe this, and so I’ll continue to believe it”. That’s a dangerous way of looking at the world, as we all discovered in November of 2016 (if we hadn’t discovered it before).
iknklast,
Again I agree, I wasn’t assuming that you had a particular animus towards business graduates. Most of Trump’s policies, such as they are, are nonsense economically and counter productive in the long term. Sooner or later the US plutocracy and those transnationals that really run the world economy will work to undermine his administration. We’ve discussed previously how people vote against their class interests, it’s baffling. I’d also agree about ‘wilful ignorance’. Recently I watched a senator from one of our fringe parties claim that our public broadcaster should give equal time to climate deniers and anti-vaxxers, most of the latter have no qualifications whatsoever. Apparently it was in the interests of free speech. Many members of the public are confused when a small proportion of scientifically trained practioners ‘trade with the enemy’ ie they support alternative medicines and are actively anti-vaccination. Also most pharmacies have an entire wall filled with ‘natural therapies’, they’re nice little earners.
Let’s be realistic, the capitalist media has no interest whatsoever in accurate reporting. Snake oil is easier to sell than science.
In the U.S. at least, our specific mix of a secular constitution, diverse religion, and strong religious sentiments can reinforce this. Freedom of religion here means that we expect to have beliefs that we take very, very seriously; that are in no particular agreement with that of our neighbor; and don’t answer to evidence. That’s nominally just for religious beliefs, but there’s no boundary for where a belief ceases to be religious, so beliefs as part of a political or “spiritual” identity can easily assume the same sacred status. (Sometimes, I wish we didn’t have a concept of identity in a political, gender, sexual, religious, racial, or national sense; if it does any good at all, it’s lost in all the crap.)
In the reality-based community, beliefs are meant to be true. They’re not pets or loved ones or internal organs – they’re entirely disposable tools, to be changed or tossed if they do not fit the world.
Ditto to Jeff. And the other problem with that is the strange perception we have that beliefs should not only be respected, but should be left alone. Again, this was nominally about religion – it was “rude” and “unkind” to disagree about religion, or hurt religious sentiments. It is beginning to spread to everything under the sun, not just jade eggs and homeopathy, but white nationalism and Nazi ideology. That’s why we read so many pundits telling us we need to try to “understand” the alt-right (I understand them; I grew up with them. They are quivering with hate, and have very few real ideas that could be called such. They are people who think Swift’s “A Modest Proposal” is a damn good idea).
The funny thing is, it’s always the reality-based community being told to shut up and sit down. We’re seen as killjoys if we point out that driving twenty feet to pick up a single item at the convenience store warms up the earth, or that we actually weren’t planted here in a garden 10,000 years ago, or that people of color are genetically identical to us in every way that counts (after all, melanin doesn’t screw up brain development), or that women actually can do math. We are to sit down and not rock the boat. Of course, if no one rocks the boat, that means the status quo never changes. Sometimes I suspect that the portion of the left that is detached from reality actually wants the status quo to stay the same; if it changes, they have no more battles, and no reason to get out of bed.