Why Trump Can't Pardon his Closest Associates

 

Leading media outlets are full of speculation to the effect that President Trump might now issue blanket pardons to Rudy Giuliani, to his immediate family, and even to himself.  A Washington Post reporter, Gillian Brockell, writes such “preemptive pardons have a long history.”  Jane Mayer, perhaps the leading political journalist in the United States, discussed blanket pardons in a long piece on Trump’s future in the New Yorker.  While many question whether Trump can pardon himself, hardly anyone has even questioned his right to free family and associates from any legal worries growing out of his administration.  In my opinion as an historian, this is a grave mistake based almost entirely on a single relatively recent episode in our history: Gerald Ford’s sweeping pardon of Richard Nixon.  Although that pardon was never litigated in court, it had no precedent when Ford issued it, and a recent law review article by Aaron Rappaport points out that it violated a fundamental principle of pardon law.  President Trump, in short, has no demonstrated right to issue a blanket pardon to his family members, to Rudy Giuliani, or to himself.

Like our constitutional impeachment law, the Constitution’s pardon provision drew on English precedents established over centuries which the framers knew very well.  In medieval times the King of England had virtually absolute power to pardon offenses, but as early as 1389, Parliament (whose powers fell far short of what they later became) passed a law insisting that the King could not issue pardons for the most serious crimes—including murder, rape and treason—without specifying the exact offense he was pardoning. In 1689, after the Glorious Revolution, Parliament took away the monarch’s right to ignore such laws. By the next century, the most eminent legal commentators, led by William Blackstone, agreed that pardons of felonious conduct could only apply to specific offenses. “A pardon of all felonies,” he wrote “will not pardon a conviction . . . (for it is presumed the King knew not of those proceedings,) but the conviction . . . must be particularly mentioned.”[1] 

It does not require much reflection to see why this is so.  The pardon power existed in England and now exists in the United States because of many good reasons to excuse a particular offense by an individual, or, as has often happened—as we shall see—by a large group of individuals. A new president may reject a law under which people were convicted, or may find mercy a better strategy to deal with an outbreak of lawlessness.  Evidence may show that a convict was innocent. To issue a pardon for any offense that a person might have committed, however, would simply elevate that person above the law.  A chief executive might hire subordinates for the express purpose of committing federal crimes (as Richard Nixon did, indirectly, with the White House Plumbers in 1971), and promise them such a pardon before he left office to protect both them and himself. Such a possibility clearly lies well beyond the limits of legal, legitimate government as understood by the founding fathers.

Unfortunately, that is exactly the kind of pardon that Gerald Ford gave Richard Nixon in 1974, weeks after Nixon resigned from office.  In order to prevent the ordeal of a long trial, Ford said, he granted “ a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”  Nixon appears to have been, literally, the first person in American history to get such a pardon.  At least one contemporary commentator has compared a possible Trump pardon for his family to the “blanket pardons” that previous Presidents have issued.  George Washington pardoned nearly all the rebels in the Whisky Rebellion. Thomas Jefferson pardoned everyone convicted of violating the Alien and Sedition Acts.  After Utah joined the Union President Benjamin Harrison pardoned all citizens of Utah who had committed the crime of polygamy.  Jimmy Carter became the last of a long series of Presidents to pardon all men who had resisted a wartime draft.  Many of those pardoned in these instances had not been charged, but in each case, they were being immunized against prosecution for a very specific crime.  They respected the English common law precedent that pardons had to refer to specific offenses.

Unfortunately, a subsequent President followed in Ford’s footsteps. When George H. W. Bush pardoned six convicted Iran-Contra defendants just before leaving office in 1992, he pardoned them “for all offenses charged or prosecuted by independent counsel Lawrence E. Walsh or other members of his office, or committed by these individuals and within the jurisdiction of that office.”  Not content to reverse these men’s prior convictions on cases brought by the independent counsel, Bush removed them from his jurisdiction.  Given that Bush himself had been an active participant in the Iran-Contra Affair and that his own superior, then-President Reagan, had agreed to appoint the independent counsel, this was a rather obvious betrayal of our principles of justice as well, and one that should show us how wrong the precedent that Ford set was. Even this, however, did not relieve the six of legal jeopardy for any federal offense that they might have committed during a specific period of time.

The whole career and presidency of Donald Trump testifies to weaknesses in our justice system.  Had Trump not managed to escape serious financial and other consequences from a long series of other legal scrapes, he would never have become president in the first place. Now, he is actively contemplating trying to place key associates, and himself, out of the reach of the federal criminal justice system for all time.  He must not be allowed to do this.  Should he issue such charges, and should prosecutors find sufficient evidence of new, indictable offenses by any of those he pardons, they should bring the indictments and challenge the pardons on the grounds that they did not mention a specific offense, and tried to give the recipients an immunity that the founders never intended anyone to have.  That will give the courts the opportunity to confirm that Ford’s pardon of Nixon is not a valid precedent in American law. 

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[1] Quoted in Rappaport, op. cit., p. 289.

John LeCarré, Historian

 John LeCarré's extraordinary career as a novelist has ended with his death.  I have learned some new things about him from obituaries and reminiscences that have been published in the last few days.  I discovered him at the same time that most of the world did: in 1964, when I was 17, and The Spy Who Came in From the Cold  hit the western world with the impact of a small nuclear weapon.  From then until the end of the Cold War I believe that I read each of his books roughly at the time that it  came out, and beginning in 1978, when I taught my own lecture course for the first time, I found ways to work him into my teaching. It was in the 1980s when finally realized what the underlying point of his Cold War thrillers was--of which more later.  In the thirty years since the fall of the wall that was the scene of the opening and final scenes of The Spy Who Came in From the Cold, I read his books more intermittently, and I'm sorry right now that I don't have more of them in my personal library upon which to draw.  By by  the last decade, at the latest, it was clear that he had found a new theme.  He emerged, for me, as the critical western historical novelist of the 20th and 21st centuries, because he identified the  most serious human diseases of both the Cold War era and the  very different era that has succeeded it.  Both of them related to a central problem of human existence: individual allegiance to a greater good.

LeCarré's own career as a spy had soured him on the profession, and The Spy Who Came in  From the Cold (whose plot I will have to give away--spoiler alert), showed his disillusionment.  Alec Leamas, its protagonist, is a hard-drinking, burned out agent who   has watched the whole network the British Secret Service has established within East Germany (or "the Zone," as he insists on calling it, since Britain and  the NATO alliance didn't recognize it as a country), fall one by one to East German counterintelligence, led by an ex-Nazi, Hans-Dieter Mundt. I didn't realize when I read Spy that  LeCarré' had laid the foundation for it in an earlier, little known book, Call For the Dead, in which Mundt, then working in London, had killed several people, and nearly killed LeCarré's most famous creation, George Smiley, who played a background role in Spy. Back in London after watching his last agent shot at the wall, Leamas meets Control,  the never-named head of the service who became the tragic hero of Tinker, Taylor, Soldier, Spy about a dozen  years later.  Control convinces him to "take another crack" at Mundt.  To do so, Leamas plays the role of a drunken, violent, disillusioned ex-agent, whom East German agents eventually try to recruit to tell them what he can about British intelligence and its assets in their homeland.  This eventually leads him into East Germany.

The man behind his recruitment, it turns out,  is Lens Fiedler, Mundt's Jewish deputy, whose family first fled to Canada under the Nazis, but who returned, dedicated Communists that they were,  to help build the new socialist  Utopia.  Fiedler has watched  the destruction of Leamas's network from a different angle.  He has managed to identify some of these agents, but Mundt has managed to find ways to kill them before he could interrogate them.  Fiedler now suspects that Mundt is himself a British agent, the source of Leamas's best intelligence on the East German secret service istelf--recruited at the end of Mundt's stationing in Britain, when  he  had managed somehow to slip out of the country even though he was wanted for murder.   Leamas quietly encourages Fiedler's suspicions, partly by telling him that they could not be true.  This, we realize, is the whole point of Control's operation--to get Fiedler to take down Mundt by validating his suspicions.

In the novel's shattering climax, played out at Mundt's trial for treason, Leamas, and we, learn that he has been played all along by his own side. Using Leamas's younger lover Liz Gold--an idealistic, Jewish British Communist whom he met on his first job after leaving the Service--Mundt at the trial manages to show that Leamas is still working for the Service and has in fact come on a mission to destroy Mundt.  Fiedler becomes the villain of the piece in the eyes of the East Germans, and Mundt is saved from  his suspicions. In return he promises to let Leamas and Liz (who had been lured to East Germany under false pretenses so that she could testify) escape back over the Wall.  But Mundt hates Liz for her Jewishness, and guards shoot her as she climbs up the wall.  George Smiley, suddenly emerging on the other side of the wall, calls upon Leamas to jump to the western side, but he does not. Instead he climbs down on the other side, almost forcing the East German guards to shoot him so that he can die with Liz.  They are, as the last image of the book makes clear, two lowly individuals caught up in a great ideological struggle, crushed between the two great rivals of the East and West.  

When I read that book at 17 in the midst of the Cold War,  I felt that Leamas at the end had had to give up his role in the struggle, without questioning its broader purpose--which he defends, a bit too desperately, in his last conversation with Liz just before their deaths.  It was much later that I realized  LeCarré was asking whether the struggle had any real meaning for the average person at all.  The clue came from the plot of Spy, but also from that of his other masterpiece, Tinker, Tailor, Soldier, Spy, and really, I saw, from all the Cold War novels.  The issues that  the plots turned on never had any relevance to anyone but t he spies themselves.   A British or Soviet or East German "mole"--a foreign spy within their own service--never provided any information, in these books, except information about his own spy service.  Their deadly game was like a war between Mafia families, and had even less impact on anyone else's life, except those like Liz Gold drawn in as innocent bystanders. 

That point became more explicit in The Russia House, published ironically in 1989, and based upon a key true episode of the Reagan era.  During the 1980s, the US spent billions (and planned to spend billions more) based on a gross overestimate of the accuracy of Soviet missiles--an overestimate that suggested that  the whole US deterrent was vulnerable to a first strike.  In real life, two prized agents of the US within the Soviet mission in the UN--code-named Top Hat and Fedora--had told their handlers that the Soviet ICBMs were nowhere near as accurate as we had thought. So devastating was that information to US defense planners that they concluded that Top Hat and Fedora were double agents and henceforth discounted their information.  That theory in turn collapsed when the Soviets caught Top Hat and Fedora spying, brought them back to the USSR, and executed them.   In The Russia House, an anonymous Russian operative presents a British private citizen with a manuscript revealing what Top Hat and Fedora had said--that Soviet missiles were nowhere near as accurate as US intelligence thought.  But as a condition of providing the material, the Russian--who, standing in for    LeCarré', has grasped  the secret of the Cold War struggle--demands that the Brit release it publicly, rather than turn it over to intelligence services who will find a way to pooh-pooh it because it threatens their own mission!  Alas, the novel's protagonist doesn't manage to make this happen, but meanwhile, as The Russia House climbed the best seller lists, the USSR collapsed, and we found ourselves in a new era.

Within a little more than a decade, LeCarré had found his new theme. The protagonists of his new books  became relatively ordinary men and women who, out of either idealism or simple chance, learn about some private wrongdoing.  In The Constant Gardener, (2001), a British diplomat (not a spy) named Justin Quayle suffers the murder of his wife in Kenya.  He eventually finds that she was killed by a major drug company, after she had discovered that they had conducted a fatal medical experiment on some Kenyans.  It turns out, however, that the drug company has far too much influence around the world--including on the British government--to be called to account.  (I remember one reviewer who made another interesting argument:  that such companies were so impervious to criticism that the murder of the wife would have been entirely unnecessary.)  Similarly, in Our Kind of Traitor(2010), a British academic named Perry Makepiece on a Caribbean holiday meets a Russian oligarch who wants to use Makepiece as a conduit to British intelligence.  The oligarch, Dima Krasnov, wants to buy some international protection from a rival oligarch by providing information on criminal activities.  It turns out,  however, that Krasnov's rival has more influence in Britain than he does, and the story ends very badly for both Krasnov and Makepiece.  Some of the other later books reminded me of The Wire.  Anyone who has any integrity, who takes his job seriously, and who tries to do the right thing is likely to be seriously screwed over.

The world of spies was only one small corner of the  world of the Cold War, and certainly one of the more dysfunctional corners.  The allegiance that world demanded of the spies and of us all could be very cruel, and a new generation in the western world and in the east bloc as well rebelled against it and left that world.  Yet the new world  they created,  LeCarré ultimately felt, was worse. Like Balzac comparing  the 1830s to the Napoleonic era, he concluded that without the value of service to the state, a pure selfish individualism had taken over, with disastrous consequences. LeCarré left behind one more prediction.  Donald Trump, he said, seemed to him a carbon copy of his own father, a con man whom he immortalized in A Perfect Spy. For that reason he was convinced that Trump would eventually turn out to have no assets at all.   I will be watching to see if he was right.

                                    

A repost from the past, and possibly from the future

 The overwhelming decision of the Supreme Court against the Texas lawsuit suggests an interesting generational change there.  While two of the Boomer Republicans, Thomas and Alito, wanted to hear the case (albeit without providing the immediate relief the states demanded), the three Gen Xers that Donald Trump appointed weren't in the least interested.    While they are dedicated conservatives, they evidently are not partisan warriors.  That is at least marginally good news.   I do not yet feel confident that President-elect Biden will take office without some serious problems in the next five weeks, but Trump appears to have lost his last path to victory.

Being slightly under the weather this weekend--absolutely nothing to worry about, let me assure you--I am not going to try to write a whole new post.  Here instead is one of the more important ones that I ever did, now more than eight years old.  I'm afraid that the Republican strategy that it described is about to return.    

Struggle

One of the most important readings about the Vietnam War that I have ever encountered is a chapter by the late Douglas Pike, a real authority on the Viet Cong and the North Vietnamese, about dau tranh, or struggle, the philosophy behind the Vietnamese Communist revolution. Dau tranh, Pike explains, had two forms: military and political. Of the two, the political was far more important, and indeed, the Viet Cong always had several times as many active political workers as soldiers during the Vietnam War. Their mission was to rally their own troops and sow confusion among the enemy, doing whatever they could, in particular, to make the South Vietnamese government unable to function effectively. They also infiltrated that government at every level and tried to influence the views of enemy forces. Their goal, essentially, was to reduce society to chaos and allow the well-organized Communist Party to take over. The other day I raised some eyebrows in a small group setting by suggesting that the Republican Party has been practicing dau tranh for more than twenty years. It has now crippled government at all levels and has a good chance of reducing much of the United States to chaos in the next ten years.

Dau transh in its current form started with Newt Gingrich's all-out assault on the Democrats in the House of Representatives, whom he was determined to demonize in order to take away their majority. Grover Norquist's anti-tax pledge, now signed by almost every Republican in Congress and thousands more in state legislatures around the country, is another form of dau tranh. So, of course, is the ceaseless drumbeat of propaganda day after day, week after week, year after year, on Limbaugh, Hannity and the rest. So is the attack on the authority of the mainstream media, universities and scientists. Oddly, while this attack on government probably did more than anything to land us in our current economic mess, the mess also makes dau tranh more effective, because it undermines confidence in the government. Conservative Republicans have also waged long-term dau tranh within our legal system, using the Federalist society to develop a network of conservative lawyers and judges and packing the courts whenever they can. Jeffrey Toobin has analyzed the increasingly significant results of that effort in a series of articles in the New Yorker.

I was moved to write this post because I have to deal with dau tranh almost daily myself in managing this blog. One of my regular readers is a fanatical right-winger who probably posts 50 comments a week here, week in and week out. They are not really comments, for the most part--they are links to some piece of right-wing propaganda, often accompanied with personal abuse towards myself. I think I know who he is, although we have never met face to face, and I also regard him as the prime suspect for having put my name on the Obama=Hitler email which is still circulating, even though he denied it when we were both still on the same discussion forum. (He was kicked off the forum when his dau tranh and personal abuse went too far.) I warn, of course, on the blog, that abusive anonymous comments will be deleted, but he berates me for doing so nonetheless. The attempt to keep the extreme Republican view of the world in the foreground is a key element of Republican dau tranh, just as it was for Nazis and Communists.

The Republicans' real target is the idea that dominated the last century--the idea that human reason can design, and create, a better world. That is why Theodore Roosevelt and Woodrow Wilson have been given places in their Pantheon of villains. I'm afraid they have sufficiently discredited that idea that it no longer dominates our political life, and might be disappearing altogether. Their lust for power is much, much greater than their respect for the truth. This is the threat the nation faces. Pike also argued provocatively in one of his books that there was no known counter-strategy to dau tranh, and I'm afraid he may have been right.

The Establishment and the Nation

 President-elect Biden is already behaving like a president, speaking frankly about the health crisis facing the nation and appointing capable, calm and experienced people to a variety of positions.  Let us all hope that he will be able to secure a relatively rapid distribution of the two new vaccines, halt the spread of the epidemic, and allow the economy truly to recover while we all resume normal life.  Meanwhile, however, the nation will still face an unprecedented political problem.  At no time in American  history, in my opinion, has our political class and our journalistic and academic establishment been so utterly out of touch with large masses of the American people as it is today.  That gulf, once again, allowed Donald Trump to win the  Republican nomination and the election in 2016, with truly disastrous consequences that will be with us for some time.  And the danger will persist as long as gulf lasts--and it is far from clear that a Biden administration will heal it.

The American people in 2016 rebelled against the polices of both the George W. Bush and Obama administrations, policies which in many ways differed much less than political partisans realize.  Let us begin with foreign policy.  In the wake of 9/11, Bush, drawing on a momentary national consensus similar to the one that followed Pearl Harbor, found two new bases for American foreign policy.  First, the United States would use military force to eliminate foreign regimes that were building weapons that the United States did not think they should have.  That led to the invasion of Iraq--which turned out not, in fact, to be guilty as charged--and would have led, if the first invasion had gone better, to wars against Iran and North Korea.  Under Barack Obama, that same principle very nearly led the nation to bless or join in an Israeli war against Iran, although Obama and John Kerry eventually managed to reach the Iran nuclear agreement instead. The second principle gave the  United States a right and a duty to  use military force against any radical Islamic political movement that threatened to take power on any continent.  These policies have been disastrous economically and politically.  Iraq and Libya, where Obama and Secretary Clinton revived the Bush policy, remain in a disastrous state. A new effort under Obama to topple the Syrian regime has also failed disastrously.  We are carrying out military operations in various parts of Africa without result.  Donald Trump has now made the proliferation problem much worse by repudiating the Iran agreement, but to his credit--yes, I said that--actually seems to understand that the second policy is worse than useless, and is trying even now to reverse it in Somalia and Afghanistan.  Biden has chosen Obama Administration veterans to head his foreign policy team, and it is entirely possible that they, like Obama, will reverse course again and continue the endless struggles in Afghanistan and elsewhere.  That will continue to produce no good results on  the ground and   continue to alienate large portions of the American people.

No issue seems to have done more to divide the establishment and much of the American people than trade and globalization.  Trump made the impact of free trade agreements a key part of his platform, and took various steps aiming at reversing their effects.  Those steps had at best a marginal impact, and they did not allow him to carry badly hurt states like Michigan and Pennsylvania again.  Yet it remains true that globalization has been bad for many Americans, and that they will not support anything that smacks of returning to it.  Immigration also divided the elite, which favored it, from many Americans (not all of them white, by any means) who resented increased illegal  immigration.  Thanks in part to the pandemic, the Trump Administration has reduced new entries into the nation to a very low level.  In my opinion, we should now keep the level of new immigration low for some time, while simultaneously giving our millions of illegal immigrants legal status and the protections it provides, which they now desperately need. If instead the administration immediately rewrites the definition of asylum yet again, in ways that allow nearly Central American to enter the country, another severe political backlash is almost certain to follow. 

While those issues seem to have hurt the leadership of both parties among the American people, a Democratic administration has particular vulnerabilities which may re-emerge.   A number of important Democratic constituencies take positions on controversial issues, and use language, which have only negative resonance among many millions of their fellow citizens.  The newest of these, of course, is "defund the police," which Biden has sensibly repudiated.  Latinx, transgender [sic], and intersectional are examples of language that immediately persuades many Americans that the speaker lives in a different and hostile universe, especially if the speaker clearly characterizes anyone resisting such language as a "deplorable.". Perhaps most importantly, the strength and visibility of many minority constituencies with the Democratic Party, combined with the emphasis on diversity which Democratic presidents bring to appointments, has convinced many Americans that Democrats only care about those constituencies. This is the Democratic party's contribution to the great tragedy of contemporary American politics:  that among the lower economic half of our population, white people vote overwhelmingly Republican while nonwhites vote overwhelmingly Democratic.  President Biden will undoubtedly have many opportunities for a "Sister Souljah moment" in response to one or more shrill demands from various constituencies, but I am not confident that he will take advantage of any.

Nor is it clear that a Biden Administration will take any really effective steps to stop the march toward greater inequality.  Biden recently remarked that there is no reason that the top income tax should not be what it was when George W. Bush came into office, that is, 39.8%.  American society made the greatest progress towards equality from the 1930s through the 1960s, when the top rate was 90% (and it fell only to about 75% in 1964 and was still at least 50% when Reagan came into office.)  In any case, even if the Democrats win both of the Georgia Senate runoffs, a 50-50 Senate will not pass sweeping progressive reforms to our tax system.   The pandemic has led to an unprecedented expansion of government spending and government deficits in peacetime.  Such an expansion in spending in the two world wars led to confiscatory marginal tax rates on very high incomes in the first place.  Even in 1917, apparently, the nation understood that in a time of crisis, the richest had to make unprecedented sacrifices. I have seen no trace of that view today.

While part of me still yearns for a return to the principles that created the nation in which I was lucky enough to grow up, a larger part now believes that those principles will  not return to favor in my lifetime.  Perhaps Barack Obama in the midst of the great economic crisis of 2008-9 might have revived them, but he and his team chose not to do so.  Several generations have now become accustomed to inequality.   We may therefore have to focus on more immediate goals--such as the restoration of sanity to our political life, and at least a moderately effective attack on some national problems--for some time.