Photo courtesy Gage Skidmore
I hadn’t intended this blog to be all Trump, all of the time. It sure is working out that way. I know, I know, no fun.
Well, he told us. He said he was going to do it, loud and clear, right there in front of the cameras in Phoenix. Sheriff Joe was going to be just fine, he said, basking in the approval of the crowd. There was no reason, none at all, to doubt that he meant it. After all, there was nothing stopping him, nothing but convention and established norms, all those invisible, insubstantial lines that aren’t written expressly into the U.S. Constitution. By now, surely, it’s plain to everybody that Trump cares nothing for those.
Americans revere their constitution, but from here in the cheap seats it’s starting to look more deeply flawed all the time, though to be fair, how anyone could have drafted a document that actually anticipated and expressly prohibited every possible variety of malfeasance and sheer bloody-mindedness in the human repertoire is difficult to imagine. Jefferson, Hamilton, Franklin, Madison, and all the rest of the Founders and Framers, could not have reckoned that if you designed a legislative system that couldn’t accomplish anything unless people compromised, the legislators would simply get comfortable with not accomplishing anything. They never figured that if the President was given the authority to fill positions on the Supreme Court, so long as the Senate consented, they also needed to make it clear that of course the Senate couldn’t just refuse to consent to anybody at all and leave the seat empty. They didn’t think to insert the obvious thought that if they granted the President the otherwise unfettered constitutional authority to issue pardons, those pardons could not be issued to undermine the Constitution itself.
In any case, there was an all-purpose safeguard: any President who stepped way out of line could be impeached. The impeachment power was remarkably broad in its vagueness – a President could be impeached not just for “high crimes” but also for “misdemeanours”, a term the framers were cagey enough to leave undefined. How were they to know that a partisan legislature would simply refuse to exercise that power?
So here we are. There’s nothing written down that specifically stops Trump from pardoning Sheriff Joe Arpaio, and so as far as Trump and his advisors are concerned, it’s all nice and legal if Arpaio gets pardoned.
This is a Sheriff who made it his business to, in effect, write his own immigration laws, and establish his own little gulags in which he could detain anyone he suspected was an illegal immigrant, applying his own criteria. Genetics had a lot to do with it, and the Sheriff didn’t see why he should need any other evidence to ground his suspicions before he hauled someone away in handcuffs. A Federal court told him to stop, and with astonishing brazenness, he simply kept doing it. That earned him a conviction for criminal contempt of the court order. Now the Donald has saved him from any imposition of sentence.
So much for the rule of law.
What now? If any of his disgraced cronies face criminal penalties for, say, colluding with a foreign power to rig the election, or facilitating money laundering on a vast scale, why shouldn’t Trump just pardon them too? Ah, but he wouldn’t dare, say the liberal pundits, because then the pardoned miscreants would have no Fifth Amendment protection, and could thus be compelled to testify. Really? Or else what? Well, if they refused, they’d be convicted of contempt of court, and…oh.
Is there no limit then? Can a President really use his powers to pardon his own criminal co-conspirators? Can he send people out into the country under express instruction to break the law and violate the Constitution, and immunize them with pardons granted prospectively? Can he even pardon himself? That absurd thought has occurred, according to the many White House leakers, and why not? Where does it say he can’t?
If Donald is to be reined in, assuming Congress isn’t about to impeach anybody, it will be up to the courts, but here’s the thing: the courts may simply agree that a President can pull these stunts because strictly speaking, nothing says he can’t. This is the problem with the “textualist” school of constitutional interpretation, which has many adherents among conservatives within the judiciary. This holds that either it’s written down, or it simply isn’t there. Don’t argue about objectively reasonable intent, or what must actually have been meant by those who wrote it. What do the words say? What else matters?
From where I stand, being a lawyer and all, this seems rather an odd way of interpreting legal documents. When courts look at a contract, for example, they interpret it on the assumption that none of its individual terms, however worded, should be construed in a way that defeats the very purpose of the larger written bargain. If something is obviously necessary to give effect to the contract, but the parties, though they must have intended it, forgot to write it in, the required term will be “implied”. A similar approach is often used by the courts in interpreting legislation – known as taking the “purposive” view. Potentially absurd outcomes are avoided by looking at specific text in light of the overall purpose of the law. In other words, a court may say something along the lines of “we know that it’s possible to read it that way grammatically, but the legislature can’t possibly have meant that”.
This sort of thinking may be all that can stop the likes of Trump. The written words of the relevant section of the Constitution may not say so, but it ought to be held that the power to pardon isn’t broad enough to allow its use as a blunt instrument through which the Executive can circumvent and undermine the Constitution istself.
But is that the way the Supreme Court would see it? One wonders. The seat that Obama wasn’t permitted to fill has been given by the Republicans to a judge who once held that a worker had no inherent right under the terms of his employment, or even under a statute designed to protect employees under the very circumstances then being litigated, to take obviously necessary steps to save his own life. The likes of Neil Gorsuch have no trouble with narrow interpretations that ensure that the whole purpose of the law is undermined. Thus in his view, a truck driver could be fired for deciding to disobey an order that everyone agreed put him at risk of freezing to death. I’m not making this up. Look:
It starts to become apparent why it was so important for Mitch McConnell and his corporation-loving Republican colleagues to thwart Obama and make sure this guy got a seat on the court, doesn’t it?
It’s said that Gorsuch is a jurist in the mold of the recently departed Antonin Scalia, whose seat he now fills. Scalia was a textualist, and here’s the sort of thinking his adherence to that rigid dogma produced: when contemplating the Second Amendment’s “right to bear arms”, he mused whether this could include shoulder-mounted guided weapons like the Stinger anti-aircraft missile or the Javelin anti-tank round. To “bear” is to carry, right? These military weapons were designed to be carried by a single soldier. On the face of it, therefore, they fell within the meaning of the amendment. To a judge like Scalia it’s irrelevant that the architects of the Second Amendment had not even the vaguest notion of the sorts of weapons we’d be deploying in the 21st Century, nor is it proper to argue that if any of those fellows in their tri-corner hats had known that a child in our time would be able to carry a weapon that would out-gun an entire platoon of contemporary soldiers, they’d have been more careful in wording that part of the provision that was supposed to make it clear they were talking about the right to organize a local militia. Nope. It says “bear”, and “bear” means what it means. Look it up in a handy dictionary. Webster’s, say, or the Oxford English. You’ll see.
Conservatives used to rave about how brilliant Scalia was. He was clever, all right. Clever enough to make stupid ideas sound rational. His was the sort of clever that could end up with an elegant interpretation of the Constitution that condones the sort of authoritarian abuses the framers were so passionately determined to prevent. One more thing that Jefferson, Hamilton et. al. could never have imagined. Who knows? Maybe Gorsuch will be motivated by a quntissentially conservative suspicion of government power. Scalia might have looked at it that way too. It’s always a crapshoot when you hand it to the judges. In any case it might take a long while to sort all this out in the courts, if it even gets to the courts. In a better world Congress would do its job, and it wouldn’t have to be litigated. Of course, in a better world there wouldnt be anything to litigate.
Meanwhile, Joe the criminal Sheriff skips away scot-free, and Trump grins that idiot’s grin of his, delighted to have shafted the courts and demonstrated that he can do whatever he wants. More pardons to follow, perhaps. And other hijinks. Whatever can be forced into the chinks of the Constitution’s purely textual armour. God help America.