On the Presidential Pardon Power

[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.

Click to access op-olc-supp-v001-p0370_0.pdf

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.

https://avalon.law.yale.edu/18th_century/fed69.asp

https://avalon.law.yale.edu/18th_century/fed74.asp

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.

A Belated Word on the First Republican Presidential Debate

Although we don’t have Fox News, I was ultimately able to watch most of the debate on tape delay. By this time, you have either watched the debate and formed your own reactions, or heard others’ assessments, so we’ll just hit a few highlights.

It was a bit strange to see the seven male candidates – as well as the Fox moderator, Bret Baier — all in blue suits, white shirts, and red ties. Presumably, some clothing consultant has told the candidates that Republican voters like candidates that project red, white and blue. Being conditioned to Ronald Reagan’s presidential sartorial style – despite his undisputed patriotism, he managed without flag lapels and wore suits and ties in varying hues — I thought the male candidates looked like Mini-Mes of former President Donald Trump.

I indicated in a pre-debate post that a candidate I wanted to see was Businessman Vivek Ramaswamy. I wouldn’t have thought it possible for any bona fide presidential candidate sharing a stage with seven others to trigger such a strong negative reaction in me within 15 minutes, but Mr. Ramaswamy achieved it. He is an irritating, naïve, superficial, supercilious grandstander. He has learned one valuable lesson about Mr. Trump from Russian President Vladimir Putin, however; by saying nice things about Mr. Trump, it makes it significantly less likely that Mr. Trump will criticize him much (at least as long as Mr. Trump’s lead over him remains significant). One pronouncement, however: Mr. Trump will never pick Mr. Ramawamy for a running mate. Mr. Ramaswamy is too good a showman; Mr. Trump would never risk the possibility that he could be upstaged.

Six of the eight on stage – excluding former NJ Gov. Chris Christie and former AR Gov. Asa Hutchinson – agreed that they’d support former President Donald Trump if he is the Republican presidential nominee, although I believe that most indicated (I’m not sure about Mr. Ramaswamy) that they believe that President Joe Biden defeated Mr. Trump in 2020 and that Mr. Biden is, accordingly, the legal president of this country. Hearkening back to a point I posted recently, this means that those who have declared that they will support Mr. Trump – who continues to maintain that he won in 2020 – if he wins the nomination will do so although, given their conclusion about Mr. Biden’s legitimacy, they must necessarily consider the former president a traitor, a liar, or a lunatic.

Let me join the chorus: I thought former SC Gov. Nikki Haley had the best night. I thought former Vice President Mike Pence had a good night. She was strong on issue specifics; he was strong on duty (although he dated himself at times by parroting Mr. Reagan’s sayings). Putting aside wide differences I have with them on domestic policy, each looked like s/he was actually qualified to be president of the United States.

From a political handicapping standpoint, I thought the panel as a whole dug Republicans deep general election holes on abortion and spending. On the former, only Ms. Haley seemed to give herself some wiggle room to reassure moderate conservatives alarmed by the Republicans’ generally draconian position; on the latter, their mantra about cutting spending will ultimately run into Democrats’ claims that any cuts will impact Social Security and Medicare, programs hugely popular with the Trump populist wing of the party. Less apparent but every bit as irrational as some candidates’ acknowledgement of Mr. Biden’s legitimacy coupled with their pledge to support Mr. Trump if he is the Republican nominee was some candidates’ harrumphing about cutting taxes while simultaneously bemoaning our increasing deficit; anybody with a history book (admittedly, this may put FL Gov. Ron DeSantis at a disadvantage; such a potentially Woke reference may already be banned in Florida 😉 ) is aware that none of the tax cuts respectively wrought over the last 40 years by Mr. Reagan, President George W. Bush, and Mr. Trump “paid for themselves”; each increased our deficit. Finally, although I have seen some commentators disagree on this point since the debate, the strong support of Ukraine voiced by Ms. Haley, Mr. Pence and former NJ Gov. Chris Christie seemed to me to carry significantly more weight than Mr. DeSantis’ waffling or Mr. Ramaswamy’s naïvete.

A few quick snapshots. ND Gov. Doug Burgum didn’t seem to recognize that he’s not in North Dakota any more. Mr. Hutchinson seemed less grandfatherly and more conservative and strident than he’s appeared in some profiles I’ve seen, but his primary challenge seems to be Mr. Pence, arguably a better choice for Republicans seeking an ethical, grandfatherly figure. Mr. Christie pounded Mr. Trump effectively, but seems highly unlikely to win the nomination even if Mr. Trump falters – although if he finishes second to Mr. Trump in the New Hampshire primary, that will indicate notable general election weakness for Mr. Trump and I suspect cause significant pangs of regret for NH Gov. Chris Sununu, who six months ago I felt had the best shot of any potential primary challenger to Mr. Trump.

Again, conceding I’m joining the chorus: U.S. SC Sen. Tim Scott was less impressive than I expected. For a man who’s supposed to have a different and upbeat tone, to me he came across as programmed and grumpy. Watch for him to attack his fellow South Carolinian, Ms. Haley, pretty aggressively in the next debate, because she clearly stole the show from him and at most only one of them will emerge from the South Carolina primary. If she outscores him in Iowa and New Hampshire and rides momentum to beat him in their native Palmetto State, he’s done.

I’ve left the tallest sapling in the room for last. It took me a while, but I was finally able to conceptualize my impression of Mr. DeSantis in the context of the candidates’ discussion as to whether Mr. Pence did the right thing on January 6, 2021. They all, more or less – either definitively or hesitatingly – indicated that they felt that Mr. Pence had done his duty to protect our republic in the face of Mr. Trump’s unremitting hounding. The question I’d pose – not to them, but to you, is this:

If any of the other seven candidates on that stage had been subjected to the extreme pressure Mr. Pence endured, which do you feel would have performed to protect our republic as he did?

My gut says:

Mr. Burgum, Mr. Christie, Ms. Haley, Mr. Hutchinson, and Mr. Scott all would have done their duty.

I’m leaving Mr. Ramaswamy out of it; I’m not sure he’d know what his duty was.

Mr. DeSantis would have known the right path – but he would have caved under the pressure. Once I realized that was my visceral impression of him, I didn’t need to consider him any further.

Have a great Labor Day Weekend.

We Need to Get in the Game

Much of my career involved negotiation. There was one negotiating principle that I found by far the most valuable in representing our organization (please excuse the male gender reference):

Assume that the other guy is brighter than you are, and knows at least as much as you do. He knows his weaknesses that you intend to take advantage of. How will he try to counter and overcome them?

On MSNBC’s Morning Joe of August 25, amid coverage focusing on former President Donald Trump’s August 24^th booking in the Fulton County Jail (complete with mug shot) for the charges that he conspired in violation of Georgia state law to unlawfully overturn his Georgia 2020 presidential election loss, former Republican National Committee Chairman Michael Steele cogently (and chillingly) articulated my deepest fear for our republic since it became clear, despite Mr. Trump’s obvious incitement of the January 6^th insurrection and President Joe Biden’s inauguration, that Mr. Trump wasn’t going to fade away and that the spell he has cast over a large segment of our electorate wasn’t going to dissipate:

“[With the Georgia booking now completed] [w]e are where we knew we’d be. … I think we need to contextualize all of this. … We already know what the politics is. We’re seeing it play out. [U.S. OH Rep.] Jim Jordan and his ilk are all on defense, to block and tackle for Donald Trump to slow this process because in their warped mind, Donald Trump wins next year, come hell or high water. The fix is in in Election Boards and in processes around the country. They’re already setting it up, so let’s not act surprised and act like, ‘Oh my God – we didn’t see this coming!’ They’ve been telegraphing and preparing for it for over two years now. So we know what they’re doing on the ground in a lot of states, particularly key states like Wisconsin, Michigan, Pennsylvania – shall I go on? We’ve heard these places before, right? So let us stop being surprised by stuff, and get in the game. And understand exactly what Jim Jordan and all the others are doing to set up 2024. And when that happens, we’ll know how to deal with it because we will have dealt with it before that moment. … So let’s understand the moment beyond the shock and awe of [Mr. Trump’s indictments and the mug shot] and recognize that the politics is in play, the legal system is doing what it should do, and the American people now need to decide whether they want to put [Donald Trump] back in the White House.”

Morning Joe host Joe Scarborough actually seemed a bit nonplussed by Mr. Steele’s comments, and immediately pivoted to the safer (and for the show’s panel) happier reveling in Mr. Trump’s legal misfortunes. Mr. Scarborough didn’t want to go into the dark; he preferred to stay with the theme that the law was going to do its job with the attendant implication that Mr. Trump would consequently be disqualified from regaining the presidency.

I mentally stuck with Mr. Steele. His comments have prompted me to pester you with this note.

MAGAs around the country are – to use Mr. Steele’s word – warped, but it is an extremely dangerous misconception – and perhaps fatal for our democracy – to underestimate them, to think they are stupid. Assume that they have decided what many, including me, calculate: Mr. Trump has too much baggage to defeat Mr. Biden in an above-board, fairly determined election; that he is too distasteful to too large a segment of our electorate and that even on substantive policy, the Republican position on the emotive issue of abortion – a challenge for any Republican — will be an additional millstone around his neck. If Mr. Trump is the Republican presidential nominee, their only real hope to win by the rules is if a third party candidate draws support from Mr. Biden, or if the President suffers a serious health incident between now and Election Day, 2024, leaving voters with a choice between Mr. Trump and Vice President Kamala Harris (I haven’t heard even one of our progressive friends in very progressive Madison, WI, suggest that Ms. Harris could beat Mr. Trump in Wisconsin.)

So if you’re MAGA, what do you do? As Mr. Steele pointed out, you do your best to rig state election boards and election processes. You continue to sow distrust in the willingly gullible about the integrity of our election processes. You fund allegedly “centrist” third party candidacies. Perhaps you realize that President Biden’s ability to use the U.S. Armed Forces to quell localized armed rebellions against his declared re-election will be hampered if the authority of the military’s chain of command is subject to question. (At this time, responsibilities of three members of the Joint Chiefs of Staff are being performed by acting commanders, and hundreds of military promotions and reassignments are on hold, due to a Senatorial stop by U.S. AL Sen. Tommy Tuberville; the disruption Mr. Tuberville has caused will reportedly take months to unravel).

In the entire saga around Mr. Trump’s various indictments, the only time I’ve felt the “shock and awe” to which Mr. Steele referred was not with regard to the Georgia mug shot, or with regard to the various revelations regarding Mr. Trump’s alleged mishandling of classified documents; it was reading the indictment brought by Special Counsel Jack Smith describing the conception, the planning, the audacity, and the malign disregard for liberal democracy that was involved in the execution of the Fake Electors scheme. I assume most of us – certainly including me – thought that the 2020 election was effectively over in December, 2020, when the states certified their respective slates of electors.

We didn’t think big enough. We had too much trust and too little imagination.

2024 will be a two-front struggle. First, Mr. Trump or any other Republican candidate exhibiting MAGA tendencies needs to be actually fairly outvoted in enough states to give Mr. Biden a valid Electoral College victory. There is a second front, every bit as important: safeguarding the victory through legal processes, keeping in mind that MAGAs – to be sharply and completely differentiated from moderate conservatives, rank and file traditional Republicans, and those prominent GOP members such as former Vice President Mike Pence, U.S. UT Sen. Mitt Romney, and former U.S. WY Rep. Liz Cheney, all of whom respect our democratic processes – won’t stop if they lose on the merits, and that there is nothing they won’t dare. They seek an American Apartheid.

But for Mr. Pence, our lack of imagination might have been fatal to our republic in 2020. We can’t risk another such lapse. If we don’t think in these terms, we will deserve the autocracy that will descend upon us.

These pages will almost certainly spout a lot of Noise in the coming months about the innards of our electoral contests, assessments of the political strength of different candidates and the sentiments of various segments of our electorate. These aspects of our electoral process remain, of course, vital; if Mr. Biden doesn’t win fairly and justly in 2024, there will be no need for MAGA machinations. That said, we need to think like MAGAs, and then figure how to counter the illiberal measures they have proven themselves willing to undertake if Mr. Biden wins.

Too Armageddon, too apocalyptic for you? I hope you’re right; but after what we’ve seen over the last six years, are you sure?

In Mr. Steele’s words: We need to get in the game.

On Mr. Prigozhin’s “Crash”

Russian news sources have reported that a plane carrying Wagner Group Leader Yevgeny Prigozhin “crashed” yesterday about 30 minutes after taking off from Moscow. As all who care are aware, this summer Mr. Prigozhin led his forces – which by all accounts have been the most effective in furthering Russia’s invasion of Ukraine – in a quickly-extinguished mini-revolt against Russian President Vladimir Putin’s conduct of the conflict. Mr. Prigozhin’s Wagner Group has reportedly also been Russia’s most effective force furthering Russia’s efforts in Africa.

I have heard it speculated that the plane was shot down or that an explosion occurred on board. The cause may never be officially confirmed, since the crash occurred over Russian territory. Given Putin’s track record with those disputing his leadership, I suspect that nobody who thought about it for over, say, a second, thought Mr. Prigozhin had very long to live after his attempted coup was aborted. Most will assume that Putin was behind Mr. Prigozhin’s demise. I have seen former U.S. Ambassador to Russia Michael McFaul, obviously an extremely knowledgeable authority, indicate that it was too soon to tell whether Putin was responsible; Mr. McFaul offered that it might have been Putin, or it might have been forces aligned with Mr. Prigozhin’s attempted revolt who were outraged when he backed down to Putin.

A Latin phrase that those of us who are mystery story readers have seen countless times: Cui bono? – Colloquially, Who benefits? With all due and deserved regard for Mr. McFaul’s reservations, my money would be on Putin. I’m confident that Putin believes that rebels can’t run a revolt against an established dictator such as himself without a credible revolutionary leader.

Former Russian World Chess Champion and well-known dissident Garry Kasparov – one of the very few people I follow on Twitter; his rants against Putin and in support of Ukraine are worthy of note – has tweeted that he thinks Putin’s assassination of Mr. Prigozhin is an indication of Putin’s fragility, not strength. Since I’ve had the temerity to disagree with Mr. McFaul, I’ll also take the liberty of respectfully disagreeing with Mr. Kasparov. I consider the main consequence of Mr. Prigozhin’s death to seemingly be the solidification of Putin’s domination over Russia even as the Russian president’s Ukrainian incursion appears an ever-deepening strategic debacle.

On the First 2024 Republican Candidate Debate

First, full disclosure: We won’t be able to watch the first Republican Party presidential debate this Wednesday. Quite a while back, we opted to go to a reduced cable station package, and elected not to include Fox News because I saw no reason to put such an unnecessary strain on my aging heart 😉 . (I’m shocked that the Republican National Committee hasn’t offered me a seat in the Milwaukee debate hall; after all, I am just down the road 🙂 ). That said, a few pre-game observations (based on the understanding that even candidates refusing to pledge to support whomever is ultimately the GOP nominee will be allowed to participate):

The easiest first: former President Donald Trump is obviously making the wise strategic move to skip the debate. Aside from the most important point – he would almost certainly say something that could be used to incriminate him in one of his upcoming criminal trials – in skipping the debate he’s avoiding a clash with former NJ Gov. Chris Christie, who would be gunning for him (please excuse the old reference) and is even better at slugging it out than Mr. Trump is. (Mr. Christie has assumed the mantle of Overt Trump Adversary that I have previously indicated in these pages that I thought former U.S. WY Rep. Liz Cheney might play.) At the same time, even though Mr. Trump will not be on the stage, my guess is that he will still sustain some political damage. Mr. Christie is going to repeatedly call the former president a coward for not showing up – at least when he’s not calling Mr. Trump a liar, a loser, and a traitor. This will probably shave no more than a point off Mr. Trump’s core Republican support, but I’ll venture that it may have a significant impact upon the moderate conservatives tuning in who are tired of Mr. Trump. These citizens may never vote for President Joe Biden, but Mr. Christie’s verbal assaults will be the first in a continuing barrage that may start to dampen these moderate conservatives’ willingness to turn out for Mr. Trump in November if he is the GOP nominee.

FL Gov. Ron DeSantis has clearly been employing what I will call the “Rotting Redwood” strategy. By this time, Mr. DeSantis and his advisors must realize that he can’t beat Mr. Trump, one-on-one; they are trying to “hang around” so that if the prosecution worms eating at Mr. Trump, now seemingly an impregnable political redwood, suddenly cause him to topple over, Mr. DeSantis, as the tallest sapling, will be in position to scoop up the nomination. The trouble with this strategy is: Mr. DeSantis is boring. The only thing worse than an autocrat is a boring autocrat. Everyone on that stage is going to be attacking him, because they are all aware that their only hope for the nomination is to be “the best of the rest.” Although Mr. DeSantis handily beat former FL Gov. Charlie Christ to retain his governorship in 2022, I saw clips of their debate in which Mr. DeSantis simply froze when challenged by Mr. Crist in some pretty predictable areas. Up against Mr. Christie and former SC Gov. Nikki Haley – who also knows how to throw a punch, as long as Mr. Trump is not the target – Mr. DeSantis has the most to gain or lose. If he shines, he remains the Great Anybody But Trump Hope. If he stumbles – and thereafter falls to third or fourth among Republican candidates – he’s finished. Recall that Vice President Kamala Harris’ 2020 presidential campaign started to slide when then-U.S. HI Rep. Tulsi Gabbard (put aside what we’ve since learned about Ms. Gabbard) hit Ms. Harris during a candidate debate with questions about Ms. Harris’ record as San Francisco District Attorney that Ms. Harris simply froze on.

Ms. Haley and U.S. SC Sen. Tim Scott will be engaging in a fascinating exchange. Both have reportedly stirred interest among Iowans for the first Republican caucus, and each needs to sidle past Mr. DeSantis, but both will have to use some of their air time taking shots – perhaps veiled – at the other (if not this week, soon); each is undoubtedly aware that whoever loses to the other in their home state South Carolina primary will be effectively eliminated, no matter what Mr. Trump’s situation is. Their candidacies also raise a question I have, which I’ve not heard spoken of elsewhere: Is the Republican Party ready to award its presidential nomination to a person of color? I have always felt that if the late U.S. Gen. Colin Powell had run for the Republican nomination in 2000, he would have beaten former President George W. Bush for the Republican presidential nomination and former Vice President Al Gore for the presidency, and we’d have a much different – and much better – world today; but he didn’t, we don’t, and the Republican party is chasms from where it was in 2000. If Ms. Haley or Mr. Scott secure the nomination, I’m sure Republican stalwarts would vote for either rather than a despised, diabolical, demented, Godless, rabidly progressive crime boss like Mr. Biden 😉 , but I just don’t see the party nominating a black man or an Asian woman when there are plenty of good ol’ white men available.

Which brings us to the third candidate of color: Vivek Ramaswamy. Of all the candidates on stage – save, perhaps, Mr. Christie — I will most miss seeing him. If my Twitter feed – a highly, highly unreliable source — is to be believed, Mr. Ramaswamy seems to believe that there is a path to the nomination for a person of color, as long as s/he is willing to out-fascist Messrs. Trump and DeSantis. I’d start with an open mind and see whether he actually voices some of the positions that I’ve seen attributed to him. Alas, an opportunity which will be sacrificed to protect my cardiovascular system.

Whether or not you agree with their policy views, former Vice President Mike Pence and former AR Gov. Asa Hutchinson are good men who have proven themselves determined to safeguard our republic. I fear that they’re too mild to stand out in this field.

Apparently, ND Gov. Doug Burgum will also be on stage. I’ve seen clips of Mr. Burgum, and he might be plain-spoken and sensible – as U.S. CO Sen. Michael Bennet was an interesting, plain-spoken and sensible Democratic presidential candidate in 2020 – but it’s hard to see how Mr. Burgum is doing anything but running for the Republican Vice Presidential nomination.

My greatest fear about this debate is substantive. While our citizens’ respective positions on certain issues – the best course for American democracy and women’s abortion rights, to name two – are fairly solidified, their foreign policy preferences are always more fluid. Recall how a few 2020 Democratic candidates’ very expansive positions on southern border immigration drove the whole party’s position further left than the country was as a whole. I am deeply concerned that any Republican candidates’ dramatic isolationist declarations could ultimately significantly weaken Republican – and thus American – support for Ukraine. We as a world can’t afford that.

Stay tuned – if you’re able 🙂 .

It Takes Just One

As virtually all are aware, Fulton County (GA) District Attorney Fani Willis has announced an indictment issued by a Fulton County Grand Jury against former President Donald Trump and 18 other named co-conspirators under Georgia’s state Racketeer Influenced and Corrupt Organization Act (“RICO”), alleging they conspired to unlawfully overturn Mr. Trump’s Georgia 2020 presidential election loss.

The indictment reportedly runs to 100 pages. I haven’t read it. Although one can never be sure, it appears to be the last major shoe to drop of the criminal hazards that legal commentators have been indicating for months might well be brought against Mr. Trump and one or more of his cohort arising from their alleged insurrectionist activities following the 2020 presidential election.

One doesn’t need a legal background to surmise that any case with so many charges against so many defendants (and thus, involving so many, many defense lawyers 😉 ) is not going to trial any time soon.

The hallmark of our criminal justice system is that all defendants are presumed innocent until found guilty beyond a reasonable doubt by the unanimous verdict of 12 citizen jurors. As those of us who fear for our democracy if Mr. Trump returns to the White House are acutely aware, prosecutors’ daunting challenge in each of the two federal cases now pending against Mr. Trump respectively for attempting to defraud the United States and for mishandling of classified documents, in the New York case alleging his falsification of business records in violation of NY state law, and in the Georgia RICO case, is to get all 12 jurors to find him guilty. Mr. Trump will be free if — in a polarized, hyper-toxic political environment rife with propaganda in which he will be supported by a rabid cult already shown to be willing to use intimidation and violence on his behalf — he can persuade just one juror in each case that he is not guilty beyond a reasonable doubt.

That said: one set of charges in the Georgia case stands out to me: three counts against Mr. Trump for “Solicitation of Violation of Oath by a Public Official.” All of us have heard the recording of Mr. Trump’s phone call with Republican GA Secretary of State Brad Raffensperger, in which Mr. Trump – despite Mr. Raffensperger’s assurances that there was no evidence that Georgia’s presidential vote tallies were materially inaccurate — asked Mr. Raffensperger to “… find 11,780 votes” after Georgia state officials had officially reported that President Joe Biden’s margin of victory in the state was 11,779. As far as I know, Mr. Trump has never denied that the call occurred nor claimed that the tape is doctored.

The evidence seems damning. It has brought home to me the magnitude of the challenge facing Mr. Trump. The former president is facing four sets of able prosecutors (although Special Counsel Jack Smith leads both federal prosecutions, presumably he has two able lieutenants respectively leading separate teams dedicated to each of the federal cases) asserting tens of felony counts against him in four forums (at least three presumably hostile, whose jurisdiction is nonetheless legally unassailable). To retain his liberty, he has to run the table – get a Not Guilty verdict on them all. If Mr. Trump is found guilty on just one of these many felony counts he faces (let’s save perhaps for another day the scope of the Constitutional power of Pardon he might have regarding his own federal felony convictions if inaugurated president in 2025), he is seemingly done for.

So from either side of the table: It takes just one.

August Odds and Ends

One truly regrettable consequence of the multitude of indictments that have recently been visited on former President Donald Trump is the distinct possibility that Trump news may drown out rational policy discussions and all but the starkest other news until at least Inauguration Day, 2025. Despite my deepest (and by now glaringly obvious) antipathy for the autocratic impulses Mr. Trump and his cohort have both exploited and unleashed in our national psyche, I’m going to try hard to not only write about our coming political maelstrom during the next 17 months – there’s only so much to be said — although there is a part of me that feels that discussing other issues during this coming period is going to be akin to addressing the quality of the paint on World War II Allied battleships as they traveled through seas infested by Nazi submarines.

First: on one hand, I am surprised that the public perception of President Joe Biden’s handling of the economy is so dismal, and on the other, I’m not. Granting that at the macro level, our unemployment level is at or near historic lows and that today the S&P 500 Index is approximately 18% higher than it ever was when Mr. Trump was president, in our past it has often been the case – even absent invectives such as those currently being trumpeted by Mr. Trump’s propagandists – that our citizens have taken economic positives in stride, and focused on economic negatives. Thus, what our people see is elevated (relative to the last 15 years) interest rates, which impact home and car sales and small business lending, notable inflation in food cost, and – worst of all – high gas prices. Even in democratically steady times, it is never a good thing for a President of the United States if gas prices are high. While Saudi Arabia and Russia, who have a dominant roles in the world’s oil market, will clearly do what they can to inflate oil prices to assist Mr. Trump’s campaign while filling their own coffers, China’s exports are reportedly significantly sliding as western companies redo their supply chains, which will seemingly cut its oil demand and in turn presumably weigh on global oil prices. A lot of variables; time will tell.

Next: Until recently, the dangers of Climate Change have seemed existential but somehow remote in the upper U.S. Midwest – not unlike the Russian invasion of Ukraine, where the stakes are intellectually clear but we’ve been far from the brunt of the battle. Although the polar vortex made our last winter colder than normal, winter is always cold here; and we could arguably manage a degree or two of additional summer warmth more readily than our south or much of the rest of the world. Furthermore, our proximity to the Great Lakes provides us access to drinking water not as readily available in other parts of our nation and much of the rest of the world. Even so, the United States Department of Agriculture is now offering technical and financial assistance to help Wisconsin farmers respond to extreme drought conditions that are reportedly the worst to hit the state in over a decade. During parts of June and July, the smoke from Canadian wildfires created “Very Unhealthy” Air Quality Index levels hundreds of miles from Canada and caused southern Wisconsin residents to seek refuge in their homes (for those fortunate enough to have them). In July, we visited the Apostle Islands in northern Wisconsin; although there was little cloud cover during our visit, we nonetheless approached some islands through a smoke cover reminiscent of the mist pierced by the protagonists in King Kong movies as they first neared Kong’s island. (In an entirely geographically separate part of our nation: If I’d ever focused on it, I would probably have surmised that parts of Hawaii were at risk for significant future losses caused by rising sea levels, but would never have guessed that such a tropical environment would be subject to wildfires.) We are constantly warned that we are approaching a “tipping point” regarding climate change; given the increasing breadth, frequency and intensity of the climate-related damage being incurred worldwide, it is difficult not to conclude that we haven’t already reached it. While it may be true, as some credible authorities assert, that renewable technologies are not yet sufficient to enable some parts of our world to survive without carbon- or nuclear-based energy sources, we obviously haven’t moved fast or aggressively enough to reduce our dependence on carbon where we can. Although I am optimistic that in the future we will develop technologies to mitigate the effects of the toxic gasses we release into the atmosphere, there is clearly going to be no quick fix to repair the damage that our changing climate has already wreaked upon our globe.

Finally, on a happily less vital note: I was more than a little surprised that so many sports pundits professed shock at the perceived underperformance of the U.S Women’s team in the Soccer World Cup. I don’t watch or know anything about soccer, but I will venture this: with the possible exception of U.S. college football factories, if a championship team in any sport has a 60% turnover in its personnel – the U.S. Women fielded 14 of 23 players who hadn’t been on the last World Cup championship team — and has a new coach, its chances of repeating have to be in doubt. The team’s performance showed – obviously speaking in relative terms – that it wasn’t that good. So be it. It’s only sports; nobody died. I was glad to see that if the U.S. Women were going to be defeated, that it was Megan Rapinoe – a stalwart and face of the team in past championships – who was one of those that missed a crucial penalty kick; although she’s taking undue heat in some quarters due to her past outspoken progressive stands, Ms. Rapinoe’s stature in U.S. soccer lore is secure, and it will be easier for her by nature and record of achievement to shoulder the criticism than one of the newcomers. The pay equity with the U.S. Men’s team that the U.S. Women achieved through their undoubted excellence over the last quarter century is those championship teams’ and players’ true legacy.

On we march.

Pick Any Door

As the furor mounts around the grand jury’s recent indictment of former President Donald Trump for his alleged role in an insurrection-related conspiracy, I would suggest that those focused on whether he will be found guilty are in a sense chasing a red herring. As long as the former President remains the clear frontrunner for the 2024 Republican presidential nomination, the most important question facing our citizens with regard to Mr. Trump – since he currently holds no office, has no federal power — is how what he is either alleged to have done or admits that he did in the past reflects upon his fitness to be President of the United States in the future.

Start with the indisputable fact about the 2020 election results, repeated ad nauseam here and elsewhere: Mr. Trump and his acolytes lost every significant lawsuit (many decided by Republican judges who voted for Mr. Trump) challenging the election results (many reported by Republican election officials who voted for Mr. Trump) in the states that determined the election’s outcome. As the grand jury succinctly summarized in the first paragraph of its indictment: “The Defendant lost the 2020 presidential election.”

I will venture that the fate of Mr. Trump’s 2024 presidential candidacy will rest not upon the diehard opposition of Democrats or other voters unalterably opposed to him, nor upon the rabid allegiance of the voters slavishly dedicated to him, but upon those voters uneasy about President Joe Biden – his age, the economy, whatever – who are seemingly willing to entertain the notion of voting for Mr. Trump. I would suggest that there are only three conclusions regarding Mr. Trump’s fitness for office – two of them actually urged by Mr. Trump’s defenders – that one can draw from the insurrection-related charges Mr. Trump now faces:

Door No. 1: The Criminal Door. Mr. Trump knowingly engaged in a conspiracy to steal the presidency and overturn our democracy.

Door No. 2: The Free Speech Door. All Mr. Trump did was falsely declare that he won the election. Such false assertions, even if they were made knowingly, are protected by the First Amendment.

Door No. 3: The Witless Door. Mr. Trump really believed that he had won the election, and thus, he was neither conspiring to overturn our democracy nor knowingly misleading his supporters.

I would offer this to those uncommitted citizens open to voting for Mr. Trump: Put aside whether he’s found guilty or beats the wrap, a villain or a martyr. Think about Mr. Trump purely as a candidate, and … pick any door. Either he’s a traitor … or a liar … or a delusional fool unable to distinguish reality from fantasy. Whichever door you pick: Is this a person who should be … President of the United States?

Those Were the Days

This past weekend, we were poking through one of the countless antique establishments in central Wisconsin and I came across an edition of the Milwaukee Sentinel dated July 4, 1976.

I can place myself exactly on that day – not only because of the Bicentennial, but because it was a little more than a month before we were married. I was on the east coast visiting family that Holiday weekend, but am confident that the Sentinel edition I found lying on the antique store shelf is identical to the copy delivered to my in-laws’ stoop on the morning of July 4, 1976.

I was first struck by the size and weight of the paper – a paper, mind you, that was only one of two major daily papers then published in Milwaukee (the other being the Milwaukee Journal; the papers thereafter merged into the Milwaukee Journal-Sentinel) — at a time when America had a limited number of national nightly news telecasts (CBS, NBC, ABC, PBS – no Fox) and regional network affiliates broadcasting local news.

Amid the Sentinel’s extensive reporting about Bicentennial celebrations and a section on the Founding Fathers’ declaration of our independence, I saw little reference to politics. By that holiday, former GA Gov. Jimmy Carter had clinched but not yet formally won the Democratic Party’s 1976 presidential nomination, while President Gerald Ford was locked in a tight contest in which he ultimately defeated former CA Gov. Ronald Reagan for the Republicans’ presidential nomination.

I well recall that there were sharp policy differences among the candidates, but there was no indication that any of them had any reason to worry that our republic would come to an end if one of their political opponents prevailed.

Later that year, Mr. Carter narrowly defeated Mr. Ford. When Mr. Ford lost, he left. Four years later, Mr. Reagan defeated Mr. Carter. When Mr. Carter lost, he left.

Although many parts of American life are better today, obviously many need attention. We cannot go back; we can only hope to make tomorrow better. Even so, as I looked over the old edition of the Sentinel, the theme song of perhaps the most renowned television comedy series of all time – which on that long-ago July day had just concluded its fifth consecutive season ranked at No. 1 in the Nielson ratings — actually came into my head:

Those Were the Days.

On The Trump Insurrection Indictment

In a brief statement after the Washington, D.C. grand jury issued its indictment against former President Donald Trump for Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding, Obstruction of and Attempt to Obstruct an Official Proceeding, and Conspiracy against Rights, Special Counsel Jack Smith urged everyone to read the indictment. Rather than listen to the inevitable hours of ensuing commentary, I followed his recommendation. I haven’t added a link here because you have a plethora of means to reach and read it. If you haven’t already done so, please do; 45 pages of double-spaced letter-size pages isn’t that daunting and the story it relates requires no legal training to decipher.

In one respect, there is little new in it. Any citizen with the capacity for critical thought who kept abreast of the debunking of Mr. Trump’s and his cohort’s claims of election fraud in the key battleground states in late 2020 is well aware that their claims of outcome-determinative fraud were baseless. There are nonetheless some striking allegations: that Mr. Trump absolutely knew his claims were false – he was repeatedly told by competent advisors and people with understanding of the facts that there was no outcome-determinative fraud in any of the states at issue – and he continued to repeat his lies anyway, ultimately culminating in the Capitol riot; of the fairly intricate planning that went into the fake elector scheme intended to replace the legally-designated Biden electors in the contested states with Trump electors – who obviously had no legal standing to cast votes in the Electoral College and were in some cases duped into participating – to provide Mr. Trump the electoral victory (thereby violating the voting rights of the contested states’ Biden voters); and of the extent to which Mr. Trump attempted to pressure Vice President Mike Pence to reject the contested states’ Biden elector slates and return their slates back to their respective state legislatures despite being repeatedly advised – by Mr. Pence and others – that Mr. Pence had no such legal authority. (I am mystified as to why Mr. Pence continued to meet with Mr. Trump and take his calls after the election outcome was clear. Mr. Pence, as the duly-elected Vice President, was the one member of the Trump Administration who could ignore Mr. Trump, and whom Mr. Trump couldn’t remove.)

If Mr. Smith and his team prove what they have alleged, the Stop the Steal Movement was a knowing, malign, and illiberal conspiracy to steal the presidency and overturn our democracy.

I recently suggested that it could be problematic to get Mr. Trump’s insurrection trial scheduled before the election. I have since heard reported that New York authorities may be willing to give way on Mr. Trump’s March trial date for criminally violating New York business law, and I’d assume that Mr. Smith’s team will be amenable further postponements of Mr. Trump’s Florida trial for misappropriation and mishandling of classified documents if that provides a window for the insurrection trial in D.C. (I suspect that Mr. Trump’s team will seek no further delay in the documents case. 😉 )

The indictment is also a reminder of the number of loyal Americans who stood in the breach in 2020 who are now gone. For his own purposes, the former president has driven the distrust of our institutions even deeper into the public consciousness since he left office. Our way of life is at a perilous juncture. May Mr. Smith and his team enjoy Godspeed.