The Pardon Power

In the waning days of the Trump administration, while many people seek to put behind them his now failed presidency, all eyes are on the pardons expected to flow from Trump's pen. These include himself, his children and even the rioters who: attempted to lay waste to the U.S. Capitol, execute the vice-president and speaker of the House, arrest other members of Congress, and overthrow democracy, itself. It seems, therefore, that we should examine the idea of pardons and presidential power.

The words of the Constitution are clear. It states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” However, words do not exist in a vacuum. They have both meaning and context. The Constitution defines the branches of government and delineates their powers.
But it is not a dictionary. Hence the necessity of understanding the meaning of words. Even so called “originalists” must know what words mean if one is to correctly interpret the Constitution.

Let’s look at the three possible pardons mentioned above. First, Trump cannot pardon himself. By its very definition, a pardon requires two parties—the offended and the offender. This has embedded its way into daily discourse and even the manners we teach our children. For example, when we accidentally bump into another person, we say, “Pardon me.” In other conversation, whether seriously or in jest or even in sarcasm, we frequently hear the expression, “I beg your pardon.”

In the second example, Trump is fully within his constitutional rights to pardon his children. But here there exist two caveats. You cannot pardon someone for an offense or crime that they did not commit. If Trump does pardon his children he is admitting that they committed crimes against the United States. The second caveat has never been challenged in court. And that is a blanket pardon. Since Trump’s children have not yet been charged with a crime, there is reason to doubt that he can pardon them. It has been done in the past, as in the case of Richard Nixon. But it was not challenged. Legally, it is difficult to comprehend how one can be pardoned, without knowing the offense. That should deter even the most conservative judges, in fact especially the most conservative of judges, from siding with Trump.

Considering the country’s current climate, the third example may be the most critical. Can Trump pardon those who participated in the capitol riots? Some have not yet been charged and they would fall under the second caveat regarding Trump’s children. Those who have been charged would seem to fall under Trump’s pardon purview as president. However, as you might guess, it is not that simple.

In criminal law the attorney-client privilege is bedrock. Still, it is automatically rendered non-existent if the attorney and client conspire to commit a crime. On January 6, 2021 Donald J. Trump incited an insurrection against the United States. As such, he is complicit in the crime of treason. By extension of the first argument that he cannot pardon himself, and in the same way that the attorney-client privilege evaporates when conspiring to commit a crime, Trump cannot pardon the people with whom he conspired to overthrow the United States of America.

The act of conspiring need not be explicit. Trump did not say, “Go take over the Capitol Building, hang Mike Pence, kill Nancy Pelosi and arrest members of Congress.” He did tell the mob to march to the Capitol Building and “fight like hell or you won’t have a country left.” That is an incitement to riot. It is the language of revolution, a call to insurrection. It is treason, plain and simple.

Regardless of whom Trump tries to pardon in the next few days, the Justice Department must proceed with charging and bringing to trial anyone who committed crimes. That includes the January 6 insurrectionists, Trump’s children and even Trump himself. If necessary, the courts will defend the constitution. The presidential pardon power has limits.

The First Reform

The United States needs peace. Not just world. It needs intramural peace: Peace between the colors of the states; among the colors of its people. It needs peace with all its citizens. It needs peace with itself. Clearly this past election heralds just such an opportunity: a return to comity and normalcy. A return to plain decency.

Today, both relief and desperation are in the air. After four years of Trump—four years of limitless lies, of constitutional chaos, of fraudulent facts, we remain a divided nation. So how do we bridge the gap? How do we make the fundamental principle of democracy—of majority rule—work for everyone?

The president of the United States is often referred to as the most powerful person in the world. He (or she) is leader of the world’s largest economy and controls the nuclear codes of the world’s most powerful nation. Often overlooked are two people of almost equal, certainly competing, power. In truth, they do not have a bully pulpit; they cannot send soldiers to battle; nor issue executive orders. But they, too, are powerful. And that power needs a correction. I am, of course, referring to the Speaker of the House and the Majority Leader of the Senate. These two, more than any other elected official, determine what laws get made. In the case of the senate leader, he also determines what presidential appointees get confirmed. For that matter, whether or not said appointees even get a hearing or a vote.

It is important for whichever party controls the houses of Congress, that their respective leaders exercise influence over the members of their own party as they shepherd bills through the legislative process. But it is even more important that these two leaders not impede the process and progress of true democracy.

Since we live in a representative democracy, we entrust our elected officials to enact legislation that reflects the will of the majority and hopefully advances the common good. That is how members of Congress secure our rights, strengthen our economy and most of all, heal a divided nation. It is not necessary for the leaders of the two houses to agree with each other, though that would be a bonus. But is essential that they allow the legislative process ample room to work as it was intended.

When legislation originates in one of the two houses, it is perfectly within the scope of the leader’s authority to determine which bills reach the floor and, in the process to marshal the support of their members. But currently the leader of one house can sit on bills that emerge from the other, thus stalling most meaningful legislation. Such intransigence also serves as a means of freezing a president’s agenda in order to weaken him and score political points.

Come this January, the first order of business in both Houses of Congress is to make one procedural change: When a bill arrives from one house it must be given a vote in the other. This will not diminish the role or power of the two leaders. They can still arm twist and in various other ways pressure their members to vote as a block. But vote they must.

This rule change will allow for each member of Congress to go on record for their votes—on every issue. It will make them more accountable to their constituents. And for those of us who still believe in what Congress should stand for, it might just free up some of them to vote their own conscience or at least put the country before party.

Autocracy is a Slide, not a Turn

The 2016 presidential race raised serious concerns about Donald Trump’s commitment to democracy. Some people took the extreme position of suggesting that he was another Hitler. That was never an accurate depiction. For although he tapped into similar types of populism and nationalism, he did not have the oratorical skills to match Der Führer. Hitler spoke in complete, grammatically correct German. Trump is still learning English. And failing dramatically.

On the other hand, there were clear signs that Trump tended toward an autocratic approach to government. Nothing stands as a better example than his narcissism. And two quotes serve as perfect examples.

When speaking about the so-called Islamic State, Trump said, “I know more about ISIS than the generals.” Clearly, that was an absurd claim. At the time I thought that anyone with more than a third grade education would find his statement completely untenable. I was wrong.

The other claim was far more treacherous. When speaking about Washington, D.C. and describing everything as a mess, Trump said, “I alone can fix it.” Only a dictator speaks in such exclusivity and superlatives. That, more than anything else should have set alarms screeching.

After Trump was first sworn in, a concern surfaced that he would immediately set about establishing and exercising the power he so admires in other dictators. I am hesitant to suggest that Trump is clever. He’s not. But neither is he stupid. Initially he was savvy enough to move only on the xenophobic nonsense that fueled his campaign, e.g. the Muslim travel ban. Had he attempted a power grab that early on, he would have lost the support even of the now subservient Republican senate.

Trump took gradual steps to mimic the members of the autocratic club he so desperately wants to join. But it takes time to lay a foundation, to prove that you belong, and that requires deviously simple steps. First, every autocrat must lie. Over time, of course, lies add up. But there is a tipping point after which it does not matter. No one can keep track (with the exception of the Washington Post), and the familiarity that comes with persistent untruths tends to numb even the most critical of minds.

For Trump, taxes were a good place to start lying. When queried about releasing his tax returns—as Americans have become used to in presidential politics—Trump declined, saying he could not release them because he was under audit. That was not true. But it sounded reasonable enough, so many people let it slide and some were even willing to believe his claim of being a successful businessman. Never mind that the bankruptcy of one venture after another told a different story. Trump knew that without his returns no one would know that even his famed real estate holdings, specifically his golf courses, were hemorrhaging millions.

Beyond lying, a successful dictator must disparage and demean his opponents. In this particular regard, Trump is practically phenomenal. In reality he could put many dictators to shame. For he chose to go after true American heroes, like John McCain. It was a risk. But he banked on Kool Aid being a refreshing drink. Good people could disagree with McCain's politics, but no one could question that he was a patriot and a war hero. Trump, by contrast, faked bone spurs to avoid military service. No heroism there. Then again, that was so long ago. Not unlike an airborne virus, Trump’s attacks against heroes were an hallucinogenic capable even of unmasking the totally shallow and superficial Lindsey Graham. Previously, Graham considered McCain his best friend. But apparently death and autocrats have a way of making one forget. Lindsey has a new friend, now. Only one.

In order to join any fraternity or club, one must first cozy up to its leaders or its most influential members. For Trump, secret meetings and phone calls with Vladimir Putin were followed by accepting Putin’s word over US intelligence agencies; protestations of a love affair with Kim Jong Un; warning Syria’s Assad of a missile attack so there would be no loss of life or major damage; defending the brutal Mohammad Bin Salman after his orchestrating the murder and dismemberment of an American resident. The list goes on, but it is too long for this piece.

Manipulating the populace is one of the most critical steps in an autocrat’s evolution. Trump accomplished that by holding post election campaign rallies and misgoverning by tweet. He took a page from PT Barnum, and turned it into his own circus. Barnum realized that if you keep entertaining people, no matter how absurd or extreme the illusion, no one has time to examine reality. I believe magicians call it misdirection. The rallies created the illusion of massive support that both galvanized the base and frightened any moderate Republicans. The result was that the Senate was quickly added to Trump holdings. And it cost him nothing.

Eventually, of course, people become suspicious of a burgeoning autocrat and opposition mounts. It then becomes necessary to eliminate any accountability. For his first two years Congress, controlled by Republicans, questioned nothing Trump did. But when the Democrats sought a desperately needed accountability, even enlisting the impeachment process, Trump simply refused to cooperate. He withheld evidence, ignored subpoenas and sought assistance from the conservative courts he was packing.

Delegitimizing the voting process is one of the most critical moves in the autocrat’s play book. It is the reason that various non-profits closely monitor elections around the world, usually in countries that have a history of corruption. This year, thanks to Trump and Republican legislatures around the nation, the United States of America will join the countries needing international monitoring. But whatever the outcome it will not matter, because there is an open seat on the Supreme Court.

If there had ever been an indication that Trump was trying to become another Putin, his rush to fill the seat before the election is proof positive. Unlike other dictators, however, Trump does not hide his ambitions. He unabashedly admits what he is doing. He wants his people on the Supreme Court so that they can hand him the election—an election he has promised to fight in the courts. Still, there is one final thing Trump needs to do to gain admittance into the autocratic club. And he can only accomplish it if he is reelected.

In a contested election, Trump will receive a great deal of pushback from Democrats, especially those elected members of Congress. If the Supreme Court indeed hands him the election, Trump will disband that Congress, especially if both houses are controlled by Democrats. That is the final stage of his autocratic initiation. Trump will then rank among the most despicable despots in history. The sad thing for American democracy is that the evidence was there each step of the way. When Trump succeeds, we will only have ourselves to blame.

Autocracy is not a turn. It is a slide. And we are all on it. But unlike an amusement park ride, it does not end with giggles in a splash of water. It ends with death. It ends with the drowning of democracy, itself. It ends with Republicans leading a national salute and chant, “Heil Trump!”, while Democrats are left with "Heil Dic!"

Thank You, Mr. President

In his acceptance speech at the Democratic National Convention, Joseph R. Biden made reference to former President Barack Obama and said, “Thank you, Mr. President.” I think it is high time that we do the same thing for Donald Trump. It’s time to give him a break and say, “Thank you, Mr. President.” There are a number of reasons I suggest this.

For too long, Trump has been denigrated for not reading. But from the early 1900s we have used the expression, “A picture is worth a thousand words.” So what if Trump does not read? He watches television and his example has encouraged Americans to watch more TV, themselves. In doing so we are treated to constantly changing visuals, to what is now thousands of pictures, equating to millions of words in hundreds of thousands of books. That means we are smarter, now. And watching television is faster than reading a book. Thank you, Mr. President.

Besides, it’s unfair to say Trump does not read. He does. But, like many of us, he stops reading when the book or subject does not hold his attention. For example, people have said that he never read the Constitution of the United States. Well, at least he started to. But he was understandably turned off by the first three words, “We the people.” How can anyone expect him to read on? I blame James Madison. The document should have started with "I."

In his speech Biden said that love is stronger than hate. He thought that would be a zinger against Trump. But look at foreign policy. Every president since the Korean conflict has treated the Kim family with disdain. It may not be a stretch to suggest that our presidents have hated the various Kim dictators. But let me tell you, Mr. Biden, Trump also knows about love. After all, he and Kim Jong Un have fallen in love with each other. Name another president would say so out loud—especially given the undertones of that expression. But Trump does not know fear and so he told the nation with clarity and conviction that he and Kim had fallen in love with each other. That’s how you build peace. Thank you, Mr. President.

So what if Kim continues to test ballistic missiles and build nuclear weapons? South Korea and Japan are not really our allies. They don’t love Trump. At least Kim knows the way into Trump’s heart. All you have to do is say nice things about him. It does not matter how dangerous, or evil, or out of touch you are with reality. All one needs to do is “like” Mr. Trump—a lesson learned well by the crazies of the QAnon conspiracy.

There are many more reasons to thank Mr. Trump than can be included in this piece. But it is essential to list one more. This has to do with the budget of the Secret Service. This agency of the United States Government enlists officers to protect the president. As the movie “Dave” notes, a secret service agent must be willing to take a bullet for the president. But this protection extends beyond a president’s term in office. They have life long protection. Many people have questioned why. Well, consider that once out of office a former president still possesses knowledge critical to the security of the United States, including methods of obtaining intelligence information. We cannot allow that to fall into the hands of a foreign enemy. Trump has eliminated the need for life long Secret Service protection and it did not require an act of congress or an executive order. He simply brought a new reality to bear.

When Trump leaves office he will possess no knowledge having to do with the United States Government. He will know nothing about the Constitution, nothing about foreign affairs, nothing about intelligence—his or the country’s. Therefore, when Trump leaves office he will continue to trim waste by saving the Secret Service a lot of money..

Thank you, Mr. President!