The Sovereign Prerogative Of Pardon Can And Should Be Majestic

Immanuel Kant, writing less than a decade after the U.S. Constitution gave our president an almost unlimited power to grant pardons, wrote that “of all the rights of a sovereign, the right to grant clemency to a criminal…is the slipperiest one for him to exercise; for it must be exercised in such a way as to show the splendor of his majesty, although he is thereby doing injustice in the highest degree–with regard to crimes of subjects against one another it is absolutely not for him to exercise it; for here failure to punish is the greatest wrong against his subjects.  He can make use of it, therefore, only in case of a wrong done to himself…This right is the only one that deserves to be called the right of majesty” (Metaphysics of Morals, Doctrine of Right, Part II, #49).

Our current president has just exercised his pardon prerogative for the first time by commanding amnesty for former Maricopa County, Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt earlier this summer for ignoring a federal court order to cease arrests based on racial profiling.  Arpaio had not yet been sentenced, so the pardon short-circuited both the juridical process and the work of the Justice Department pardon attorney. The pardon is irreversible from a legal point of view, but our First Amendment also permits me to give my opinion that the president’s action was the opposite of majestic and has irreversibly dimmed the splendor that could have belonged to him.  Instead of displaying the splendor of his majesty, he slipped and fell into an underworld of shadows.   He confirmed the fears of the founders who feared during the debates of 1787 and 1788 that the executive pardon power could be abused in just the way we saw yesterday.

From Kant’s ethically rigorous vantage point, Trump’s pardon of a political ally was utterly knavish, not at all kingly (or “very presidential”).  The concerns of founders (some of whom were antifederalists) such as “Centinel” (Samuel Bryan of Pennsylvania) and Luther Martin of Maryland regarding the pardon power were rigorous in a different sense.  Their rigorous thoughts were in the domain of prudential politics.  They were worried about the dangers to civil society of unchecked presidential pardon power.  “Centinel” proposed in the Philadelphia Freeman’s Journal of October 24, 1787,  a “small council” without which the “chief magistrate could abuse his authority, “for as it is placed [solely in the president] he may shelter the traitors whom he himself or his coadjutors…have excited to plot against the liberties of the nation.”  Is it hyperbolic to worry that our president might “shelter traitors” he himself has riled up in order to weaken our constitutional liberties?  How many of us are unwilling to give our president yet another benefit of the doubt, when he seems to enjoy unchecked powers a whole lot more than working with anyone in Congress on actual nitty-gritty and possibly unpopular details of any issue at all?  Here’s what Luther Martin worried about in “The Genuine Information” (Not Fake News, that is), published in the Maryland Gazette, January 29, 1788: “the power given to the president of granting reprieves and pardons, was also thought extremely dangerous, and as such opposed–The president thereby has the power of pardoning those who are guilty of treason…it was said that no treason was so likely to take place as that in which the president himself might be engaged–the attempt to assume to himself powers not given by the constitution, and establish himself in regal authority–in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution.”  Did Luther Martin foresee what happened in last year’s election?  Did he know the names of Paul Manafort and Felix Sater and Kislyak and Putin?  Of course not–but I can imagine he knew people like them.  The Arpaio pardon, legal but knavish, is not the big problem; the big problem is what might come next.

Federalist par excellence Alexander Hamilton saw (Federalist paper #74) reasons for and against the exclusively presidential pardon power.  For: “it is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever.”  But also against: “the supposition of the connivance of the Chief Magistrate [in crimes of treason] ought not to be entirely excluded.”  Hamilton in his wisdom is telling us, I think, that no formula or text or even “norm” is guaranteed to give us good outcomes or to protect us against a corrupt executive devoid of conscience.  Are we there yet?

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Whose Blood Is Really Corrupt In Washington?

There are several ways the Trump presidency may end, and not one of them is likely to be remotely normal.  How citizens should deal with a problem like him without becoming dragged down into his mess is a challenge.  Impeachment seems to me much too good for the 45th president. Beyond that it gets complicated.

Some people of good will (but who may not be paying close attention, perhaps because they have lives to live and problems to solve) may still say, give him a chance.  Yeah, I did that.  It has not gone well.  With his low-class tweets about the Morning Joe hosts, he may or may not have been trying to distract us from his voter suppression commission and the apparent flameout of the Senate tax-cut/repeal of Obamacare bill.  Or maybe he had no four-dimensional plan, and just flew into a rage at another rebellious, uppity woman on TV.  Whatever was in the president’s mind, it is hard to imagine that he is anywhere near prepared to represent the United States of America properly next week when he is scheduled to meet with Vladimir Putin at a G20 summit in Germany.  Trump seems far more interested in being a king or a czar than in serving the sovereign people of our country as the head of an executive branch constrained by checks and balances in our constitutional republic.  Whose interests is he going to be serving next week?  Has he any clue that he is standing up for values and traditions any different than, for examples, those of the Russian or Ottoman Empires, or is just going to act naturally and channel Caligula or Elagabulus?

Corruption of blood was outlawed by the United States Constitution over 200 years ago.  Bills of attainder were specifically forbidden.  We have a president who swore an oath to preserve, protect, and defend our Constitution.  But he seems to inhabit a mental world where corruption of blood is more real than any fluffed-up enlightened notion of liberty and equality before the law.  Trump’s defenders, when he goes way off the deep end, resort to saying that he is a “counterpuncher” who “fights fire with fire.”  Maybe Trump should be given a taste of his own preferred medicine.  That is, maybe we should bring back the bill of attainder to restrain and neutralize the damage he has been doing.  Trump’s stance toward people in his way who are US citizens but whose ancestors were darker than his skin is often to attack them with attaint of otherness.  He has little to no feel for the spirit of the 14th Amendment, which granted equal citizenship rights to all persons born or naturalized in the United States.  Trump’s voter suppression commission looks to me much like a backdoor weapon to “attaint” voters who were disloyal and disobedient to the “I alone can fix it” man now occupying the presidency.  Why not resist his attainder with a “people’s attainder”?  How else can we restrain the entire Trump family from continuing to violate the clear words of the Emoluments Clause of the US Constitution?  Fancy word, emoluments, but to break it down, it means corruption.  If you violate it over and over it means you are not a public servant but no better than a gangster and a thug.  In Blackstone’s Commentaries On The Laws Of England, we read (Chapter 7, Of The King’s Prerogative, section 241) that “in the king also can be no stain or corruption of blood; for if the heir to the crown were attained of treason or felony, and afterwards the crown should descend to him, this would purge the attainder ipso facto.  And therefore when Henry VII, who as Earl of Richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder.”  Can we agree that our 45th president came to the presidency deeply attainted, and that he seems to have expected that ascending to the presidency should absolve him and purge him and make him clean; but that to many of us who live here the presidency feels horribly tainted and polluted?  Also that a minority of Americans, though many millions, feel that the president hasn’t been given a fair shot?  (May they take a closer look at what he is doing against much that has made America as great as it is?)  And by the way, Blackstone also comments (7:241) that “the law determines that in the king can be no negligence….Nullum tempus occurrit regi [no time runs against the king] is the standing maxim upon all occasions; for the law intends that the king is always busied for the good.”  If only!  If only we could recognize in Mr. Trump even a little fragment of this idealized picture of the monarch.

Is President Donald Trump guilty of high crimes and misdemeanors?  That is a political question more than a strictly legal question.  Should he be removed under the 25th Amendment?  That is also primarily a political question, though medical, psychological, and psychiatric expertise could be brought to bear.  I am ready to cry uncle and say I am ready for President Pence, rightwing meathead though he may be.  But first, why not ask the question, is our president guilty of misprision of treason if not treason itself?  I agree there is no conclusive proof of this now, but there are tantalizing hints and clues and circumstantial evidence all over the place.  Again, this is not a strictly legal question.  And we are not, thank goodness, at war with Russia today (though the climate is worse in several ways than during the Cold War).  But if misprision of treason is on the table as a live possibility, as I think it should be,  no effort should be spared to purify our country of the taint of corruption.

I seem to have woken up from a bad dream.  Was I really thinking that bringing back “bills of attainder” makes any sense at all?  Could bringing back accusations of “corruption of blood” serve any good purpose?  Confiscate President Trump’s property without judicial trial, and leave his wife, children, and grandchildren without any inheritance?  Seems crazy.  But crazier than a Trump-sponsored “voter fraud” commission getting states to hand over private information about 200 million voters?  Crazier than casual suggestions that if 22 million people can’t be tossed off their healthcare plans, why not strip 33 million of health insurance?

This thought experiment is not meant to draw any firm conclusions.  It is a snapshot of just how ominous the political situation in Washington seems to be today.

Talking Points About John Lewis and Donald Trump

  1. Congressman John Lewis’s biography gives him great moral and civic stature, but no special authority to say who is or is not a legitimate president.  The issue is, does his accusation against Trump have merit and substance.
  2. Trump responded to John Lewis with misdirection and non sequiturs.  Trump did not challenge the substance of Lewis’s charge that Russia’s efforts to elect Trump damage Trump’s legitimacy.  Lewis did not deny that Trump won 300+ electoral votes.  He did question the legitimacy of a victory won in part with Russian cyberattacks, hacking, disinformation, and possible collusion with Trump’s campaign.  Trump maligned Lewis and his district (crime infested? really, Trump? no crime problems in your own backyard?) but did not address what John Lewis actually said.
  3. Lewis hit on one of the main reasons Trump could be perceived as illegitimate, and this past week revealed more about others: e.g. James Comey’s thumb on the scale.  Something in his classified briefing yesterday enraged congressional Democrats.
  4. Michael Flynn’s reported five phone calls with the Russian ambassador while President Obama was announcing the expulsion of 35 Russian spies/diplomats (not to mention contacts between Russians and Paul Manafort and Carter Page and, perhaps, Michael Cohen) look suspicious if not illegal if not traitorous.
  5. If President Obama had good reasons to not go public in a strong and decisive way about all this during the campaign, that is between him and the co-authors of his memoirs.  I do not know enough to condemn or approve of Obama’s silences.
  6. Trump, weighing all the evidence as best I can, is susceptible to Russian (and perhaps Chinese or Iranian?) blackmail as long as he is president.  His best defense is that we elected him knowing full well who he is.   He was elected despite openly inviting Russia last summer to commit espionage against his political opponent.  And that is a big problem.

Paul Ryan: “Putin Is A Devious Thug”–Yes, We Knew That Already, But How About Trump?

Trump is a big strong man who is also begging Vladimir Putin to help him beat Hillary Clinton. Republicans from Mike Pence to Speaker Paul Ryan have responded to Trump’s remarks today by condemning Putin. We know plenty about Putin already. Could you brave defenders of freedom show some courage and say Trump’s words amount to treason? If Hillary Clinton asked for political help from Russian military intelligence, how long would it take for Republicans to call for her imprisonment–oh, they did that already, eh?