Political Animal

Can Trump’s Pardons Be Reversed?

We’ve seen a lot of hand-wringing about President Donald Trump’s eleventh-hour marathon of glaringly unethical pardons, but only a little consideration (see herehereherehere, and here) about whether the Constitution permits them. A decent case can be made that it does not—and that at least some of these pardons can be reversed.

The relevant passage is Article II, Section 2, in the so-called “Commander-in-chief clause.” The president, it says, “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Nobody knows precisely what that means, but Trump has been under impeachment and awaiting Senate trial—for the second time—since Jan. 13.

The most interesting real-life precedent for restricting a president’s right to issue pardons concerns President Andrew Johnson, who in March 1868 became the first of three presidents to be impeached by Congress, and two months later became the first to win Senate acquittal.

In March 1869, Johnson, on his last full day in office, pardoned Jacob and Moses Dupuy, who’d been convicted of defrauding the Internal Revenue Department, and Richard C. Enright, who’d been convicted of conspiracy to defraud the government. On assuming office, Johnson’s successor, President Ulysses Grant, reversed all three by calling back the U.S. marshals out delivering the pardons. A fourth pardon that Grant meant to reverse, to one James F. Martin, was permitted to stand because Martin had it already in hand, according to the late P.S. Ruckman, Jr., a political scientist at Rock Valley College in Rockford, Illinois. Grant’s reversal of Moses Dupuy’s pardon was challenged in court and upheld on the technical grounds that Dupuy never received it. (Ruckman, an expert on presidential pardons, died in 2018 under circumstances too distractingly gruesome and sad to get into here.)

Obviously pardons are no longer delivered on horseback; they’re received instantaneously. Can they still be reversed by a president’s successor? Yes, if the president who issued the pardon was impeached, according to the 1868 revised edition of A Familiar Exposition of the Constitution of the United States, a popular textbook by Supreme Court Associate Justice Joseph Story. If “the power of pardon extended to impeachments,” Story wrote, it could no longer protect “against political offenses. The party accused might be acting under the authority of the President, or be one of his corrupt favorites. It is, therefore, wisely accepted from his general authority.”

The question of a president issuing a pardon to protect himself from incrimination or political embarrassment surfaced in 1992 when President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger 12 days before he was set to go on trial in connection with the Reagan administration’s Iran-contra scandal. Bush had been vice-president under Reagan, and the Weinberger trial was expected to shed light on Bush’s own suspected participation in the scandal. The Weinberger pardon, along with separate pardons to four other participants in Iran-contra, drew howls of outrage in the press. An infuriated Lawrence Walsh, independent counsel for Iran-contra, wrote in his final report that Weinberg’s pardon “marked the first time a President ever pardoned someone in whose trial he might have been called as a witness, because the President was knowledgeable of factual events underlying the case.” But because Bush had never been impeached, no constitutional debate ensued.

Then came Bill Clinton’s pardon to the fugitive financier Marc Rich, who’d fled the U.S. under indictment for racketeering, wire fraud, and various other criminal offenses. Critics said Rich bought his pardon through his ex-wife Denise’s more than $100,000 donation to Hillary Clinton’s 2000 Senate campaign and a $450,000 contribution to the Clinton Library. Unlike Bush, Clinton had been impeached. A Justice Department investigation into the Rich pardon was conducted by a Deputy Attorney General and former U.S. attorney who’d participated in the Rich prosecution. His name was James Comey. Comey concluded, presumably with some regret, that the Rich pardon violated no laws.

What Comey didn’t consider, or consider sufficiently, was whether Clinton’s successor, President George W. Bush, could overturn the Rich pardon regardless of whether Clinton had violated any laws in granting it. We have since had ample opportunity to question the quality (and bemoan the consequences) of Comey’s judgment in other matters. In this instance, Comey ought to have given Bush the option to revoke Rich’s pardon. Bush himself would later demonstrate that a presidential pardon can be revoked by revoking one of his own, “based on information that has subsequently come to light,” including the fact that the recipient’s father had recently donated more than $30,000 to Republican candidates. (Whoops!)

The pardon language in Article II of the Constitution has never attracted the kind of attention it deserves, so there isn’t much legal scholarship to draw on. One way to glean its potential meaning is to consider the debates during the Constitutional Convention in the summer of 1787. These support a broad interpretation of “except in case of impeachment.” The Framers had a deep awareness of monarchical abuses of power, and were entirely familiar with the sort of predicament Trump created in pardoning the likes of Roger Stone, Michael Flynn, and Paul Manafort. Such abuses had been committed by English monarchs, and laws had been created to curb them. Checks on the king’s ability to pardon corrupt ministers had been included, for instance, in the Settlement Act of 1701, which became an essential part of the (unwritten) English constitution. The Framers were also aware of abuses committed by colonial governors.

Edmund Randolph said at the Constitutional Convention that allowing a president to pardon for even for acts of treason “was too great a trust. The president may himself be guilty. The Traytors may be his own instruments.” James Wilson, a delegate for Pennsylvania and later one of the most important interpreters of American law, asserted that if the president “be himself a party to the guilt he can be impeached and prosecuted.” The question of treason is no longer a theoretical one. The House’s Jan. 13 impeachment resolution accuses Trump of committing treason by “inciting violence against the government of the United States.”

The founders were hardly perfect, and many of their original plans have required amendments in the name of justice. But they absolutely understood the potential for corruption, including and especially in whichever person was chosen president. Trump’s pardons of those who may have conspired with him to subvert the balance of power, to commit corruption, and potentially to overturn the republic, represent exactly what they feared most.

This piece first appeared in on Backbencher, Noah’s Substack publication.

No, You Can’t Carry a Gun on the Floor of the House

“Congressman Massie,” former Secretary of State John Kerry tweeted last March. “has tested positive for being an asshole.”

This view of Rep. Thomas Massie (R-KY) is shared across the political spectrum. Massie’s habit of clogging up the House with objections to measures that otherwise would otherwise pass by unanimous consent has made him unpopular with his colleagues. His objection to a coronavirus relief bill last spring required members of the House who were sheltering from the virus to return to the Capitol in person—where, needless to say, they were exposed to fellow members without masks.

This unpopularity may partially explain Massie’s apparent eagerness to arm himself on the House floor. Earlier this month, after Speaker Nancy Pelosi placed metal detectors at the doors to the chamber, Massie pushed through the detectors. He says, by cracky, the Constitution lets him do that. Stopping armed members from entering the chamber, he told the New York Post, violates “the part [of the Constitution] that says you can’t be stopped coming or going, you can’t be detained coming or going from the House. It just says that, very specifically.”

Newly elected Rep. Lauren Boebert (R-CO), half of the House QAnon caucus, also insists on entering the chamber strapped. “The metal detector policy for the House floor is unnecessary, unconstitutional, and endangers members,” she said. Rep. Louis Gohmert (R-TX), a leader of the established crazy caucus, also refused the detector. “Article 1, Section 6 of the U.S. Constitution contains specific language prohibiting Members of Congress from being impeded on the way to a session of the House or to a vote,” Gohmert said.

The idea that the police cannot stop—or arrest—Members of Congress on their way to or from the chamber is widely held. It is based on Article I, Section 6, Clause 1, which provides that members “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.”

Pretty strong protection, huh? Take that, flatfoot! Alas, the pistol packers are reading the clause backward. In fact, the language is the Framers’ roundabout way of saying that members are liable to arrest on any criminal charge. The “privilege” clause protects them only from arrest in civil lawsuits. In the 1908 case of a House member arrested for land fraud, the Supreme Court examined legal authorities stretching from Elizabethan England to Justice Joseph Story, and explained that the “exception” from immunity from arrest—“treason, felony and breach of the peace”—in fact, means any criminal law: “[t]he privilege of immunity extends to civil arrests only and does not apply to any indictable offense.”

The common-law does provide a privilege from civil arrest, not only for legislators but for anyone attending court. As a federal district judge pointed out this year, it “existed as much for the benefit of the courts as it did for the benefit of the individual.” That’s because it would be hard to try a civil case if parties, or witnesses, couldn’t go to the courtroom or were jailed as they entered. Those wrongly arrested by sheriffs on their way to court had to seek a “writ of privilege,” which required the jailer to free the prisoner.

What does this mean for our well-regulated House members? Just this: if they are carrying an unlicensed firearm on their way to the Capitol or on their way to their D.C. home, they can be arrested by D.C. Metropolitan Police. If they try to push their way through a metal detector, they can be arrested by the U.S. Capitol Police. Guns can be banned on the House floor; indeed, anyone who studies the history of violence between members over the years would want them to be. And a federal criminal statute, 40 U.S.C.5104, makes it an offense to carry an unauthorized firearm into the Capitol. The statute does provide an exemption for members of Congress “in the lawful discharge of official duties”—but is carrying a weapon into a prohibited area really a “lawful discharge of official duties”? I confess that I would love to see Louie Gohmert or Tom Massie in handcuffs as part of a test case. And, for that matter, some members—I won’t mention Josh Hawley or Ted Cruz—might want to remember that it’s a crime to “conspire to overthrow, put down, or to destroy by force the Government of the United States . . , or by force to seize, take, or possess any property of the United States.”

So: bad news for the far-right armed caucus and others. And in fact, the news is actually worse than that. Civil detention today is a relatively rare mechanism. As the Library of Congress Annotated Constitution explains, this renders Clause is “practically obsolete.”

But there is one area where civil detention persists.

The recent opinion I quoted above is from an ongoing case in the federal Southern District of New York. Called Doe v. Immigration and Customs Enforcement, it is a challenge to the ICE practice of lurking around state courthouses and arresting allegedly undocumented people who are coming to appear as parties and witnesses, pay fines, or apply for domestic violence restraining orders. The plaintiffs argue that the common-law privilege from arrest should bar those arrests. That’s because detention and deportation of the undocumented usually do not involve a criminal arrest: It is one of the few examples remaining of civil arrest. Most of the undocumented are not charged with crimes but detained pending deportation proceedings.

Four years ago, Christopher N. Lasch, a professor at the University of Denver’s Sturm College of Law, explained the concept in a Yale Law Journal Forum article: “the common-law privilege was typically used to address arrests commencing civil litigation. As immigration proceedings are civil, the privilege maps well onto courthouse arrests for immigration violations.”

The Doe case is ongoing; thus, Representative Massie, a federal court may soon decide that you and your fellow gun-slinging legislators can be arrested but that undocumented immigrants can’t.

An Impeachment Trial Is Less About Trump and More About White Supremacy

Historian Kathleen Frydl argues in The American Prospect that “whiteness” has been the one constant in American politics: “Since the country’s founding, one organized political faction has been dedicated to preserving institutionalized racism, whether slavery or its successors.”

Of course, the whiteness faction hasn’t organized itself strictly within party lines, nor has it ever had complete control of either of the two major parties. The closest we’ve come to that is the pre-1960’s Southern Democrats and today’s Republican Party, both of which are strongly identified with the supremacy of whites and white culture.

As Frydl surveys the near-future of the GOP, she hears echoes of the cleavage of the Whig Party, which broke into pro and anti-slavery factions in the mid 19thCentury before collapsing and giving way to the Party of Lincoln.

This is not a strategy for victory for today’s Republican Party which has lost the popular vote in seven of the last eight presidential elections. Its diminished strength in the Sun Belt, particularly Georgia, Arizona, and Texas, is now threatening to remove what’s left of its Electoral College advantage. This lack of presidential viability will present its own problems, but it’s really driven by something much more fundamental–what Frydl sees as not only a white agenda but also “falsehoods” and “baseless conspiracy theories.” She puts it this way: “They cannot win national office without endorsing fabulist conspiracies, and they cannot win national office if they do.” Molly Ball of The Atlantic frames the question in a similar vein: “[Donald] Trump may be done with Washington, but Washington—and particularly his adopted party—is not done with him…”

Republicans can’t put off the question of how to deal with the Florida retiree. Trump will go to trial in the U.S. Senate for incitement of insurrection, stemming from his refusal to concede the election results and attempts to prevent Congress from counting the Electoral College votes on January 6th. If Trump is found guilty, a second vote to prevent him from ever enjoying another “position of honor, trust or profit” would preclude him from making a future run for the presidency.

Many Republican senators, all of whom will be jurors, are saying that the party cannot convict Trump and survive. They are particularly worried that Senate Minority Leader Mitch McConnell will vote to find Trump guilty.

Sen. Lindsey Graham of South Carolina is explicit on this point, arguing earlier this week that “any Republican-leader type who embraces [conviction] is doing a lot of damage to the party,” and “for the party to move forward, we got to move the party with Donald Trump. There’s no way to be a successful Republican Party without having President Trump working with all of us and all of us working with him. That’s just a fact.”

Sen. Ron Johnson of Wisconsin went further, saying “No. No. No.” when asked if he could still support McConnell as caucus leader if he rules against Trump.

Alabama Freshman Sen. Tommy Tuberville, the former head football coach at Auburn University, says a conviction “wouldn’t be good” because “the whole thing is about a team, and if you start separating the team, then it just tears it up.”

These arguments have literally nothing to do with Trump’s guilt, innocence, or suitability for future office. They are solely dedicated to politics, specifically to the impossibility of the Republican Party being a contender for power if they don’t retain the lion’s share of Trump’s loyal base.

Yet, Trump’s base is virtually synonymous with what Frydl calls the perennial organized faction in American politics that has always “been dedicated to preserving institutionalized racism.” A decision to convict Trump and prevent him from ever running again is therefore not just a vote about one man but the future of the party. In this case, Trump is the bathwater you want to throw out, but the whiteness faction is the baby you want to keep.

When Frydl says the Republicans “cannot win national office without endorsing fabulist conspiracies, and they cannot win national office if they do,” this isn’t because QAnon is an irreplaceable constituency but because straightforward, honest racism isn’t politically palatable and must be channeled and disguised. Presently, the whiteness faction is disguised as a Trump cult of personality and what Graham, Johnson, and Tuberville are essentially arguing is that Trump’s hold on that faction is real and unchangeable. If they throw out Trump, they’ll throw the party’s only avenue to power out in the bargain.

Perhaps this is true, but white supremacy has more staying power than a de-platformed ex-president. It may find a more comfortable home than the Republican Party, but it won’t disappear.

McConnell speaks for a different faction. This faction sees Trump less as the representative of a core constituency than an embarrassment and an aberration. Whatever the party’s current problems and future vulnerabilities, it can’t move forward until it is rid of him. The January 6 attack on the Capitol was the final straw, and the institutions of government need to be protected against populist assault. This doesn’t mean that this faction is politically stupid. They, too, are weighing the costs of convicting Trump and wondering if their careers can survive the backlash that would inevitably come.

Yet, they’re also balancing Frydl’s observation that Trumpian “ideas are deeply repellent to the independent and suburban voters Republicans need in order to win many elections.”

In the end, very few Republican senators will base their impeachment vote on Trump’s guilt or innocence, but rather on their assessment of the best way to regain power.

However the senators vote on Trump’s impeachment, their verdict will divide the party from key constituencies it needs to win. Either way, the party will be more divided after Trump’s second impeachment than before it.

Both guilty and innocent verdicts will invite strong third party challenges in the next election, especially if reports about Trump forming some kind of Patriot Party prove true. But the real driver of this crackup is probably not personality-driven. It could be that for the first time in American history, white supremacy is no longer an organizing principle that can bring victory.

Biden’s Hidden Weaponry

At first glance, the November election results look like a recipe for gridlock. With a new Democratic president facing a Republican-controlled Senate—or, perhaps, one only barely in Democratic hands—the prospect of Washington passing sweeping, FDR-style legislation is remote.

That doesn’t mean, however, that big things can’t happen. Indeed, if Joe Biden wants to fulfill the demands of voters—his own, but also the many who chose Trump—for systematic reform, he will have to be more creative and take bigger risks than he might otherwise be inclined to. That will mean challenging the power of oligarchic corporations, using executive authority recent administrations have not tapped, and crafting daring legislation that has a chance of shaking loose at least a few Republican votes in the Senate. 

Meanwhile, liberals and progressives have an opportunity over the next four years to engage in some soul searching about why their hopes for a broader victory in 2020 came up short. Specifically, they need to develop a revamped policy agenda that stands a better chance of widening their circle of support—especially among less-educated working- and middle-class voters, both white and minority, whom they are losing. (Conservatives will certainly be doing the same.)

If you are a longtime reader of this magazine, you will not be shocked to learn that we have thoughts on how this can be done. In fact, this issue is devoted to stories that advance an alternative agenda for the president-elect, congressional Democrats, and persuadable Republicans—though, in truth, Biden doesn’t even need Congress to implement much of what we’re suggesting. 

At the top of the list, Barry Lynn argues, are a suite of anti-monopoly statutes already on the books that Biden can deploy to reshape the American economy. These laws have gone largely unused by every president since Ronald Reagan, with disastrous results. Markets in everything from agriculture to health care to digital technology have been cornered by monopolies that jack up prices, drive down wages, and suppress innovation and entrepreneurship. Biden can start reversing the damage on day one. And with recent antitrust actions by Trump’s Justice Department and the FTC, he may have bipartisan support to do so.

He can also use federal power to enhance the freedom of local communities. As Daniel Block notes, Donald Trump’s most despicable attacks on American democracy in 2020 were directed, in part, at municipalities—like sending in federal security forces to disrupt Black Lives Matter protests in Portland and other cities, and urging GOP election officials in Detroit and elsewhere to overturn the will of the voters. And for the past decade, Republican-controlled state governments have conspired with large corporations to pass laws blocking cities and towns from raising their local minimum wage, banning fracking within their boundaries, and protecting the rights of their own LGBTQ citizens. Biden, on his own initiative, can give localities more power to run their own affairs. He can, for instance, buy back defunct coal power plants from rural electric co-ops, allow municipalities to choose to accept more refugees, and provide cities and towns—including in deep-red parts of the country—with a direct pipeline to federal infrastructure financing.

One of the greatest fears of liberals is that Senate Republicans will try to paralyze whatever policy agenda Biden chooses by refusing to confirm his executive branch nominees. But as Peter Shane points out, a little-noted clause in the U.S. Constitution vests the president with the authority to declare when Congress is in recess if the two houses can’t agree. He can then use his recess appointment power to fill the top ranks of his departments with individuals of his own choosing. It would be a major escalation of the war between the parties. But the mere threat of it might get Mitch McConnell’s attention. If the Senate leader doesn’t budge, Biden should feel free to pull the trigger.

By championing policies like anti-monopolism and local empowerment, the new president can craft something sorely missing in America: a persuasive national narrative. As the election results showed, voters are bitterly divided between two competing visions of our national origins, purpose, and possible future. “One is ethnic and exclusionary,” writes Colin Woodard, “the other is civic and, in principle, universal, though falling far short of that in practice.” If the latter vision cannot soon command a dominant share of the electorate—by, among other things, finally dealing people of color into the American Dream and avoiding unwinnable wars, the latter a goal supported by voters in both parties—Woodard predicts that there will not be a United States 25 years from now. 

Biden’s task is daunting. No president in American history has entered office with so many ongoing catastrophes yet so little support in Congress. His best hope for success is to reimagine the role of the federal government in the lives of average Americans. For too long, Democrats have been torn between centrists afraid of defying large corporations and leftists who define boldness by how much Washington spends on social programs. Today, the former is folly, the latter infeasible. The agenda laid out in this issue of the Washington Monthly provides a way out of this dilemma. It is one that allows the Biden administration to address the country’s greatest challenges with an updated liberalism that has a shot at winning the support of a decisive majority of the American people.