[Today, I emailed the following letter to the Wall Street Journal. I have no expectation it will be published; my letters to the Journal never are. 😉 ]
In your editorial, “The Supreme Court Spurns Jack Smith,” and Peggy Noonan’s column, “National Unity and the Colorado Supreme Court,” both published shortly before Christmas, the Editorial Board and Ms. Noonan set forth an approving perspective of the U.S. Supreme Court Justices which I do not share.
In your editorial, you applaud the Court’s recent refusal to provide an expedited ruling sought by Special Counsel Jack Smith on Mr. Trump’s claimed immunity defense, declaring, “[Mr. Smith’s] plea was purely political so he could meet his opening trial date … and get a conviction of Mr. Trump before Election Day in 2024.” To the contrary, I find the Court’s declination to be a despicable dereliction of its duty. The charges against Mr. Trump are credible and of the utmost import. (In her piece, Ms. Noonan observed, “I believe that in the court cases [Mr. Trump] faces he will be found guilty of many charges.” One can infer from the Editorial Board’s criticism of Mr. Smith that it expects that if Mr. Smith does get Mr. Trump to trial, Mr. Trump will be found guilty. It is seemingly fair to assume that if Mr. Trump was himself confident that he would be found innocent, he would be seeking the earliest possible trial date.) It is not “political,” in the partisan sense, for the Special Counsel to seek the earliest possible trial date to enable our citizenry to learn whether a leading candidate for the presidency is guilty of crimes against the country he wishes to lead and the Constitution he had sworn to uphold. Does anyone doubt that the Supreme Court won’t ultimately have to rule on Mr. Trump’s immunity claim – while its unwillingness to proceed at this juncture might well delay the trial to the point that Mr. Trump’s Republican presidential nomination is a fait accompli notwithstanding any guilty verdict?
The Editorial Board’s editorial’s sub-head declared that the Supreme Court Justices “wisely” refused to grant Mr. Smith’s motion for an expedited hearing. In her column, Mr. Noonan stated, “… I respect [the Supreme Court Justices], not only as an institution but individually, as serious human beings.” I would submit that by denying Mr. Smith’s motion, at least six Justices have shown themselves to be neither wise nor serious, but merely political partisans, hiding behind their robes.
[Final note: despite my disdain for the Supreme Court’s refusal to grant Mr. Smith’s motion of an expedited hearing on the presidential immunity issue, I actually agree with the main point Ms. Noonan was making in her column: that the Colorado Supreme Court’s recent holding, barring former President Donald Trump from being on the Colorado presidential ballot under Section Three of the Fourteenth Amendment to the U.S. Constitution, should not stand. No matter how strong the legal reasoning might be, the former president hasn’t yet been convicted of anything; removing him from the ballot by judicial fiat smacks of political persecution and invites civil unrest.]
As all who care are aware, the former Speaker of the U.S. House of Representatives, Republican U.S. CA Rep. Kevin McCarthy, announced Wednesday that he is leaving his seat in the House as of the end of 2023. Although he never seemed to me to present, through his own affirmative behavior, as much danger to democracy as former President Donald Trump and other MAGAS, his acquiescence to their actions unquestionably facilitated their cause. I would submit that his legacy can most fairly be characterized as that of an unprincipled, gutless lickspittle.
It is Mr. McCarthy’s personal irony – not dissimilar to the irony that U.S. Senate Minority Leader Mitch McConnell is likely to never again be Senate Majority Leader because he succeeded so well in orchestrating the elevation of U.S. Supreme Court Justices willing to strike down Roe v. Wade – that in his maneuvering and concessions to gain the necessary votes to become House Speaker at the beginning of this year, he laid the groundwork for his own truly ignominious ouster. If I could ask Mr. McCarthy one question today, it would be this: Given the bootlicking gyrations you had to go through to get the Speakership, and the humiliation you suffered at the hands of MAGA nihilists in being ejected from it – was it worth it?
Unfortunately, a corresponding irony has rebounded upon House Democrats and their leader, U.S. NY Rep. Hakeem Jeffries. They so detested Mr. McCarthy for his duplicity that when he faced the challenge to his Speakership from a pivotal – yet actually quite small – faction within his caucus, they refused to prop him up, although it seemed very possible that if they did so, they could thereafter exploit his ambition and weakness to further some of their agenda. They chose to gamble that they’d get a new Republican Speaker who, from their perspective, would either be better or no worse.
As flawed as Mr. McCarthy is, that has so far looked like a bad bet, for the country and for the world.
On November 18, 2023, men wearing red shirts indicating that they were members of a neo-Nazi white supremacist group, the Blood Tribe, and almost all wearing masks, marched in and around downtown Madison, Wisconsin’s capital, carrying swastika flags and reportedly chanting, “There will be blood.” (You can find images online; Twitter blocked the links I attempted to add here.)
One might find it as pathetic as terrifying that twenty guys – so brave and proud of their beliefs that they hid their identities, on a day when it was sunny and not too cold; no one wants to be a wet or frozen fascist – strutted through the U.S. city that may be the most liberal between the coasts.
It’s still an indicator. It’s still a warning.
I am not aware that any violence was wrought by or upon the marchers. Although they may have hoped to incite a violent reaction from onlookers by parading through Madison, I would guess that violence was not the group’s intention, at least this time. It was simply to secure a square on the board, to establish a presence, to enter a preliminary gesture of menace, of intimidation. We can unfortunately be confident that this won’t be the last such overture, by this group and others, here or elsewhere.
One can have reservations about how diligently Israel, the nation-state, has tried to protect the safety of Palestinian civilians while defending itself and its citizens against the Hamas terrorist group. I suspect that these Neo-Nazis aren’t even aware of the dangers currently faced by innocent Palestinians; they hate Muslims as much as they hate Jews. The Israeli-Hamas conflict has simply provided them a pretext to come out of their holes.
I truly believe that the vast majority of the American people are well-meaning, although some lack perspective. May the overt acts by malign groups that we will inevitably see over the next year cause those of our well-intentioned citizens who are uncertain as to the best direction for our nation, due to sincere misgivings about what they perceive as progressives’ excesses, to recognize that democracy and humanity are more important than policy differences or cultural emphases, and that the actions of these hate groups – and those politicians and political groups who encourage them — must be confronted legally — but with all our strength.
My apologies for disturbing you on consecutive days, but … I can’t resist. In the last few days much has been made in the mainstream media as well as in yesterday’s post linking former President Donald Trump’s use of words and phrases describing Mr. Trump’s opponents – principally among them, the word, “vermin” — to the words and phrases used by Fascist Nazi Fuhrer Adolf Hitler during the 1930s to depersonalize Hitler’s opponents. On his social media platform, Mr. Trump referred to his opponents (whom he clearly sees as enemies) as “Communists, Marxists, Fascists, and Radical Left Thugs that live like vermin within the confines of our country.”
During the day’s endeavors following yesterday’s post, I happened to see a report of a Trump Spokesman’s response to the outcry about Mr. Trump’s use of frankly fascist language, but I dismissed and ignored it because I really thought it was a spoof like many others one sees in liberal quarters to mock the former President. Particularly given the substance of the sharp criticism being leveled against Mr. Trump, I didn’t think anyone on the Trump team would actually be dumb enough to say what was being reported as its response — the irony would be too think, even for MAGAs.
I was wrong. It was real. For those who missed it:
“Those who try to make that ridiculous assertion [comparing Mr. Trump’s rhetoric to that of Hitler] are clearly snowflakes grasping for anything because they are suffering from Trump Derangement Syndrome and their entire existence will be crushed when President Trump returns to the White House [Emphasis Added].”
We’ll come back to the breadth of Mr. Trump’s characterization of his opponents as a component of a future post. Noting the blindingly oblivious fascist irony is sufficient for today.
This recently passed through my Twitter feed. It is perhaps the ugliest, most upsetting, and yet most apt entry I have ever published in these pages. I have never heard of Mr. Parkhomenko, but feel that this is worthy of your attention.
It was only after a recent note published in these pages regarding U.S. LA Rep. Mike Johnson’s election as Speaker of the House of Representatives that the significance of one aspect of former President Donald Trump’s triumphant social media declaration about Mr. Johnson’s selection occurred to me: in referring to Mr. Johnson as, “MAGA MIKE JOHNSON [my italics],” Mr. Trump made no reference to Mr. Johnson being a Republican. I would venture that this omission was understandable and perhaps intentional. Mr. Trump has an acute understanding of branding, and MAGA has become the brand for Mr. Trump’s political organization. MAGAs are now so far from the principles of the Republican Party of Presidents Lincoln, Theodore Roosevelt, Eisenhower, Nixon (recall that Mr. Nixon arguably had grounds to contest the 1960 presidential election outcome, and chose not to do so in order to maintain national stability), Ford, Reagan and Bushes that it is no longer accurate to refer to Mr. Trump’s supporters as “Republicans.” Members of the Trump Sect shall hereafter be referred to in these pages strictly as “MAGAs.” What this political transition augurs for those that are, indeed, still Republicans is likely to be the stuff of a future post.
On a personal note: I have posted less over the last six months than in previous years; one major factor has been a desire to be respectful of your time. It is obvious to anyone reading the majority of these notes in recent months that I have become fixed – perhaps fixated 😉 — on the rising authoritarian shift in our country brought about by the MAGA movement. It is the most perilous threat to the existence of democracy on our planet since the rise of Adolf Hitler. Even so, how many times can one impose on those who have done a blog the honor of following it by repeating in different ways the same message: that while Mr. Trump and elected MAGAs are the venomous tip of the spear, the truly dangerous poison in our national psyche is that so many of our citizens either embrace it or abide it?
Given my level of alarm at the current sentiment within our polity and given the cathartic benefit these pages provide me, I am very likely to continue with the same theme at regular intervals between now and Election Day in November, 2024. Your time is valuable; these notes many not warrant your attention.
Post by former President Donald Trump on his social media website, Truth Social.
Credible polling data indicates that over 40% of our citizens – not a fringe minority that can be comfortably ignored — have expressed a willingness to vote for Mr. Trump if he is the Republican Party’s 2024 presidential nominee. Republicans in the United States House of Representatives have elected U.S. LA Rep. Mike Johnson, whom I have seen described as, “[MAGA U.S. OH Rep.] Jim Jordan wearing a coat” and “a primary architect of the attempt to overturn the results of the 2020 election,” as the Speaker of the House of Representatives. Mr. Johnson’s selection makes him, by law, second in succession to the presidency of the United States.
Long time readers of these pages may recall that way back, when Mr. Trump nominated William Barr to be his Attorney General, I indicated that we needed to give Mr. Barr a chance to see how he performed in office before declaring him Mr. Trump’s lackey.
We saw how that turned out. I don’t care if Mr. Johnson is milder in manner than Messrs. Trump and Jordan or many in their cohort. We no longer have the luxury of giving MAGAs the benefit of the doubt. Say whatever else you will about them: they make their intentions plain. They intend to institute an American Apartheid.
What is set forth below is the renowned part of one of Abraham Lincoln’s most renowned addresses, delivered on June 16, 1858, in Springfield, Illinois, over two years before he assumed the presidency. Several preliminary notes:
The italics in the passage are as they appear in the text of Mr. Lincoln’s address in the volume from which it is drawn; presumably, he had underscored them to be sure that he emphasized them as he spoke.
In his speech, Mr. Lincoln provided no attribution for the quote, “A house divided,” presumably expecting that his listeners would understand his allusion to the Gospel of Matthew, 12:25.
I have substituted for only three words Mr. Lincoln declared 165 years ago. As you read the speech, I expect that you’ll readily discern what three words I inserted – one of which is italicized, since it replaces a word Mr. Lincoln underscored in his remarks — and what three words my substitutions replaced.
“Mr. PRESIDENT and Gentlemen of the Convention.
If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.
We are now far into the fifth year, since a policy was initiated, with the avowed object, and confident promise, of putting an end to fascism agitation.
Under the operation of that policy, that agitation has not only, not ceased, but has constantly augmented.
In my opinion, it will not cease, until a crisis shall have been reached, and passed.
‘A house divided against itself cannot stand.’
I believe this government cannot endure, permanently half fascist and half free.
I do not expect the Union to be dissolved – I do not expect the house to fall – but I do expect that it will cease to be divided.
It will become all one thing, or all the other.
Either the opponents of fascism, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new – North as well as South.
Have we no tendency to the latter condition?”
You get it. One could argue that Mr. Lincoln’s words (as modified herein) have chillingly broader implications for our entire democracy today than they did even in the toxic circumstances in which they were uttered. (Despite the South’s outrage at Mr. Lincoln’s election to the presidency in 1860 and its consequent attempt to secede from the Union, nobody claimed that the election outcome was “rigged,” or stormed the Capitol.)
Since we are able, in Mr. Lincoln’s words, to determine “where we are, and whither we are tending,” I would submit that we must, as he suggested, “judge what to do, and how to do it.”
All that read these pages are well aware of the deep misgivings I have about Vice President Kamala Harris’ substantive readiness to assume the presidency. That said, I am tired of democrats’ (small “d”) lack of imagination about the forces they face. As long as Mr. Johnson holds the House Speakership, President Joe Biden and Ms. Harris should never – never – allow themselves be in the same place at the same time.
As to our future: Are enough of our people sufficiently motivated to exert all legal (this qualification is vital; otherwise, neither side is better than the other) measures to protect our democracy?
“The House of Representatives shall chuse [sic] their Speaker …”
Article I, Section 2; the Constitution of the United States of America
I had something ready to post yesterday morning, written on Tuesday after former Speaker of the U.S. House of Representatives Kevin McCarthy was removed as Speaker and before I had heard much commentary from media talking heads, in which I queried whether the House Democratic caucus might not have missed an historic opportunity by failing to provide Mr. McCarthy the votes he needed to retain his office.
I am no fan of Mr. McCarthy. I find him gutless and more interested in title and the trappings of power than in real power. I consider him to have abided if not abetted in former President Donald Trump’s seditious attempt to thwart the results of the 2020 presidential election. I have found it unnerving to have him, as Speaker, second in succession to the presidency.
That said, I suggested in the unpublished post that the weak can serve a purpose; that Democrats might have been able to extract concessions from Mr. McCarthy that could have assured the quick passage of a clean aid bill for Ukraine, perhaps led to bipartisan collaboration on other initiatives between the less partisan members of both parties, and would at a minimum have eliminated the possibility that a MAGA would succeed Mr. McCarthy.
Even so, I pulled the post back because of a factor I heard frequently emphasized in media commentary about Mr. McCarthy after I had scheduled it: Democrats didn’t believe that he could be trusted to keep his word.
One can’t do business with somebody who can’t be trusted. If that was indeed the ground upon which Democrats decided to allow Mr. McCarthy’s ouster – rather than pique at Mr. McCarthy’s authorization of an impeachment inquiry against President Joe Biden, or his potshots at them to appease his base, or some other similar grandstanding gesture – I understand why they did what they did.
That said, Pandora’s Box has clearly now been opened. At the time this is typed, U.S. LA Rep. Steve Scalise and U.S. OH Rep. Jim Jordan have announced their candidacies for the Speakership. In a January note in these pages on Mr. McCarthy’s quest for the Speakership, I indicated:
“If … I was a member of the House Republican Caucus, I’d be a hard No on Mr. McCarthy [due to his lack of fortitude] (unless the only alternative was U.S. OH Rep. Jim Jordan, whom I consider at this point to arguably present a greater danger to American democracy than former President Donald Trump). [Emphasis Added]”
I feel no differently about Mr. Jordan’s illiberal inclinations now than I did then [although I concede that given Mr. Trump’s statements and actions over the last nine months and given their respective positions in the MAGA universe, Mr. Jordan may not now present quite as great a danger to American democracy as Mr. Trump (but I am confident that he’ll make up the gap if given the opportunity)].
I fear that we may be descending into a political maelstrom. We’ll soon know whether Democrats’ refusal to prop up Mr. McCarthy was a wise maneuver or regrettable blunder.
Yesterday, U.S. UT Sen. Mitt Romney announced that he would not seek reelection in 2024, noting in a deft and apt slap at both President Joe Biden and former President Donald Trump, “Frankly, it’s time for a new generation of leaders.” As all who care are aware, Sen. Romney has consistently stood, at times virtually alone in his party, against the malign behavior wrought upon our nation by Mr. Trump and his sect. Throughout his life, Mr. Romney has been an active member of his church; however, unlike large segments of Christian Evangelicals, he has not found his opposition to abortion incompatible with a repugnance at Mr. Trump’s abhorrent behavior. As long ago as a March, 2016, speech, Mr. Romney called Mr. Trump “a phony, a fraud … He’s playing members of the American public for suckers.” Mr. Romney was the only Republican Senator to vote to remove Mr. Trump following the former president’s first impeachment in the House of Representatives for seeking to pressure Ukrainian President Volodymyr Zelenskyy to assist him politically against Mr. Biden, and the Senator voted to remove Mr. Trump following the former president’s second House impeachment for inciting the attack on the Capitol on January 6, 2021.
The Republican Party’s 2012 presidential nominee, Mr. Romney was handily defeated by then-President Barack Obama. I think highly of Mr. Obama personally; I voted for him in 2008 and 2012. I think he did a good job in his first term. That said, a case can certainly be made that Mr. Romney would have been the better choice in 2012. In a March, 2012, CNN interview, Mr. Romney called Russia, “Our number one geopolitical foe,” and was widely derided by Mr. Obama and his surrogates for his “dated” views. At the time, I agreed with Mr. Obama and his team. We were wrong. Mr. Obama was, in my view, a poor foreign policy president in his second term. The strong impression remains that Mr. Romney would have done better.
In the 1970s Mr. Romney joined Bain & Company, ultimately became its Chief Executive Officer, and helped lead the company through a financial crisis. In 1984, he led a spin-off, Bain Capital, which became a highly successful private equity investment firm. He later successfully led the Salt Lake Organizing Committee for the 2002 Winter Olympics.
The Senator’s announcement made me reflect upon his impressive career in both the public and private sectors and to contrast it with the behavior of so many of our officeholders of both parties; Speaker of the U.S. House of Representatives Kevin McCarthy, currently groveling before the House MAGA Freedom Caucus by instituting an impeachment inquiry against Mr. Biden despite a seeming lack of evidence of wrongdoing on Mr. Biden’s part, comes most immediately to mind. It reminded me of comments by another storied Republican:
“Almost immediately after leaving Harvard in 1880 I began to take an interest in politics. I did not then believe, and I do not now believe, that any man should ever attempt to make politics his only career. It is a dreadful misfortune for a man to grow to feel that his whole livelihood and his whole happiness depend upon his staying in office. Such a feeling prevents him from being of real service to the people while in office, and always puts him under the heaviest strain of pressure to barter his convictions for the sake of holding office. A man should have some other occupation – I had several other occupations – to which he can resort if at any time he is thrown out of office, or if at any time he finds it necessary to choose a course which will probably result in his being thrown out, unless he is willing to stay in at cost to his conscience.”
The Autobiography of Theodore Roosevelt; Theodore Roosevelt, Sagamore Hill, October 1, 1913
Whether or not one agrees with Mr. Romney on every substantive issue, he has repeatedly shown himself a man of honor and conscience, unwilling, in Mr. Roosevelt’s words, “to barter his convictions” to appease his party’s prevailing sentiment. He will remain as estimable upon leaving office as he was in office. His departure will not be his loss; it will be ours.
[Note: we’ll leave to a later – and hopefully mercifully shorter 😉 – post commenting on the recently-published 100+ page legal article asserting that former President Donald Trump is barred from running for the presidency under Section 3 of the Fourteenth Amendment.]
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Article II, Section 2; The Constitution of the United States of America
University of California, Los Angeles law professor Richard L. Hasen, a leading expert on election law, has reportedly opined that the Constitution does not bar anyone indicted, or convicted, or even serving jail time, from running for president and winning the presidency. I’ve recently had a couple of close friends ask me if I thought that former President Donald Trump could pardon himself if he is inaugurated president in January, 2025, after having been convicted on any of the multiple federal charges he now faces. I’ve heard a number of media talking heads pointedly note that because the most recent indictment against Mr. Trump in Fulton County, Georgia, involves violation of Georgia state law, he couldn’t pardon himself if convicted in that proceeding – from which I infer that these commentators believe that that Mr. Trump might well have the power to pardon himself of federal convictions if he reassumes the presidency.
While the Constitution’s vesting in the President of a seemingly unqualified pardon power for “Offenses against the United States” arguably provides a prima facie argument that if re-inaugurated president, Mr. Trump will have the power to pardon himself of any federal convictions, I will submit [of course, subject to my customary (and glaringly obvious 🙂 ) disclaimers (1) that I never dealt with Constitutional Law in my legal career and (2) that one of the pairs of sharp legal eyes that sometimes scan these pages with more experience on these issues may completely disagree]:
A president does not have the power to pardon him/herself of federal crimes. If called upon to rule, a significant majority of the Supreme Court will so hold.
Although there are undoubtedly other authorities that have opined on this issue, the opinion rendered by U.S. Acting Assistant Attorney General Mary Lawton on August 5, 1974 – three days before then-President Richard Nixon announced his resignation of the presidency – seems the most pertinent. Ms. Lawton wrote: “[Article II, Section 2 of the Constitution] raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” Ms. Lawton died at age 58 in 1993 after a distinguished career of public service. A link to her memorandum is immediately below.
Ms. Lawton’s reaction is of course the one we all had before we (cue the voice over of the late Rod Serling) … crossed over into the Trump Zone. That said, no Supreme Court, let alone this one, would be willing to base such a momentous decision upon a half-century old opinion written by an Acting Assistant Attorney General. This is where this note turns particularly geeky 😉 .
A number of the Court’s current conservative Justices are legal disciples of the late Associate Justice Anton Scalia, an adherent of “Originalism,” which Justice Scalia is reported to have described as, “The Constitution … means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
I would submit that the best authority for what the Constitution meant when it was adopted is The Federalist, a series of eighty-five articles written in support of the adoption of the Constitution by Alexander Hamilton, James Madison, and John Jay under the pen name, “Publius.” Thomas Jefferson, no friend of Mr. Hamilton’s, described The Federalist as “the best commentary on the principles of government which ever was written.”
Links to Federalist Nos. 69 and 74 are provided below; both were written by Mr. Hamilton on the proposed President’s Constitutional powers. Although Mr. Hamilton was a proponent of a strong federal government and an empowered President, he was at pains to reassure Americans – since the United States had only secured its independence from England and King George III a few years before — that the new Constitution would not anoint a new de facto King, but rather that the President’s powers would be more akin to those then possessed by the Governor of the State of New York. In No. 69, he wrote in pertinent part:
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is … no punishment to which he can be subjected without involving the crisis of a national revolution. …
The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? [Emphasis Added].”
Language of a quarter of a millennium ago is obviously challenging to parse. Mr. Hamilton was clearly stressing that a President, unlike the King of England, was not “sacred and inviolable,” and that, unlike a king, he could be “subjected” to “punishment” without a national crisis. In Mr. Hamilton’s comparison of the presidency to the New York governorship, he argued that from a practical political standpoint, the Governor had greater power than the President and noted that the Governor, if leading an aborted conspiracy against the government, might pardon his “accomplices and adherents”; there was no indication that the Governor could pardon himself. Furthermore, Mr. Hamilton noted that a conspiratorial President himself might be “incapacitated by his agency” (i.e., impeached and convicted in the Senate for his role in the treasonous plot). Presumably, if a President could pardon himself, he would do so before he was “incapacitated by his agency,” and avoid the “prosecution and punishment in the ordinary course of law” that Mr. Hamilton alluded to earlier in his essay. Mr. Hamilton never indicated such could occur.
In Federalist No. 74, Mr. Hamilton returned to the presidential pardon power, declaring:
“As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law,and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. [Emphasis Added]”
Addressing the issue whether the pardon power should only be vested in the Congress in cases of treason, Mr. Hamilton wrote:
“As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate [i.e., the President] ought not to be entirely excluded. But there are also strong objections to such a plan.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. … [T]he secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. [Emphasis Added].”
The basis of Mr. Hamilton’s argument in favor of the President’s pardon power is that a single individual “of prudence and good sense” – as contrasted with a legislature, easily moved by the passions of the day — would be able to impartially determine whether a given individual deserved a pardon. (Mr. Hamilton’s position here was arguably colored by his obvious visceral belief that the President would always be of sterling character; he commented in Federalist No. 68, “It will not be too strong to say that there will be a constant probability of seeing the [presidency] filled by characters preeminent for ability and virtue.”) Even so, since no person can be expected to be prudent or sensible with regard to his/her own guilt and punishment, it is not a long conceptual step to infer that Mr. Hamilton never envisioned that a President could pardon him/herself. Although Mr. Hamilton specifically contemplated that a President could be involved in treasonous activity, he provided no mention that the treasonous President could pardon him/herself.
Finally, let’s go to the most compelling authority one can find this side of The Godfather:
“PARDON.An act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed [Citations omitted].
EXECUTIVE PARDON is an executive act of grace exempting an individual from punishment for a crime he has committed [Citations omitted]. [Emphasis Added]”
Black’s Law Dictionary; Revised Fourth Edition
A pardon is an act of grace, which by its very nature must be bestowed by one with power on another deemed worthy of clemency. One cannot bestow an act of grace on oneself.
As Ms. Lawton noted long ago, no one can be a judge in his/her own case. Mr. Hamilton spared no effort to convince skeptical Americans that the President would not have the powers of a King. (What is more Sovereign-like than the power to forgive oneself of one’s own misdeeds?) Finally, no one can perform an act of grace for him/herself.
Are these arguments irrefutable? Of course not. Mr. Hamilton never specifically declared, “The President described in our contemplated Constitution can’t pardon himself.” Justice Scalia was also an adherent of textualism, which interprets the meaning of a legal document by its text, and there’s nothing in Article II, Section 2 that says a President can’t pardon him/herself. That said, it is hard not to anticipate that Justices Gorsuch, Kavanaugh, and Barrett, appointed by Mr. Trump, will look for a justification to enable them to assert their independence from the former president by joining Chief Justice Roberts and Justices Kagan, Sotomayor, and Jackson in rejecting such a broad claim of the presidential pardon power. As U.S. District Judge Tanya Chutkan, the judge now presiding over Mr. Trump’s Washington, D.C. insurrection trial, noted in In November 2021, when rejecting Mr. Trump’s motion to block a congressional committee’s access to his presidential records:
“Presidents are not kings.”
On a final, unfortunately more somber note: if Mr. Trump is elected in 2024, I’m wondering whether he might not be able to achieve a de facto Get Out of Jail Free Card regarding any federal convictions then lodged against him even if he can’t pardon himself. He will certainly appeal any conviction and sentence. Unless his appeal is heard and denied before he is inaugurated, query whether upon taking office he won’t instruct the Justice Department to enter pleadings conceding the merits of any appeal he has pending, perhaps thereby obtaining the reversal of his conviction or remand of his case to the trial court – where it would be suspended during the term of his presidency. Having even less criminal and appellate law background than I have constitutional law knowledge, I leave this concern to those who do possess such expertise to correct me if I’m missing the boat here. I sincerely hope that in this last respect, I am.
McCoy's Noise 