First, let’s get this out of the way: I don’t want you to miss this post I just put up a few minutes ago, but the separate topic of this post is also something that needs to be addressed now, not later,. I can’t have both posts top my stories for the day, but I can at least berate both my readers into making sure they read both posts. So go read that other thing, okay? Okay. On to this post.
As you know, I’m US-law curious, with a side of comparative constitutional law & constitutional construction, but I’m not a US lawyer & didn’t go to a US law school. That puts me firmly in the position described by the aphorism
A little knowledge is a dangerous thing.
That said, I am terrified that Trump is going to do further damage to the US government. Some people have been saying, and I’m sure that many have been thinking, that removing Trump when he only has 13 days left in his term of office is more dangerous than leaving him in as a lame duck.
Personally? I think he’s too dangerous to be left in office for 13 minutes. When I went to bed last night, it was my hope that by the time I woke up, Trump would have been 25th and Biden would be the 47th president two weeks from now instead of the 46th. Make no mistake, I’m not happy about a Pence presidency, even one as short as this would be, but the combination of Trump’s dangerous instability with the circumstances of yesterday’s assault on the Capitol Building creates some unique dangers.
Yes, that’s right: other people may be afraid he’s going to launch nukes at someone, but I tend to believe that the Pentagon’s professional military class would find a way to ignore those orders at this point. Now, ignoring those orders would have its own cost for rule of law and credibility of deterrent and any number of other things, but short of actually setting off the nukes, I think other actions Trump could take present more dangers.
In particular, I’m scared of separation of powers issues between the executive and legislative branches. It has long been understood that congress has certain inherent powers necessary to its functioning. It has, for instance, the right to defend its members and secure its own work space sufficiently to fulfill its functions. This is why there is a separate Capitol Police force, answerable to Congress. Likewise, Congress has an inherent authority to punish through contempt of congress charges, which are constitutionally distinct from bills of attainder.
Every minute Trump retains the pardon power, we run the risk of him grabbing a pen and a napkin and scrawling out pardons to yesterday’s insurrectionists – including himself and members of congress who encouraged the mob.
What happens if he does this? Well, first we have to recognize that there is precedent for mass-pardon without specifying individuals. Lincoln issues a mass pardon after the Civil War so we didn’t have to hang hundreds of thousands (if not millions) of Southerners. The logistics of the trials alone would have been daunting, since you would need to prove each case beyond a reasonable doubt, which would require a large amount of time from juries, judges and prosecutors. You can understand why he did it, and as it turns out the power to issue pardons to unspecified persons in this general way wasn’t challenged precisely because it made so much sense in the post-war environment.
But this is not the same situation. It’s different because we do actually have the capacity to handle the hundreds of trials (rather than hundreds of thousands of trials) that would result. But also it is different because such a blanket pardon can reasonably be seen as undermining the inherent right of Congress to defend its ability to function.
it gets worse if Trump pardons himself. This is already a constitutionally suspect action, but if it implicates the ability of congress to defend its ability to function, it becomes much more important (and divisive) a constitutional question. Also, we could imagine Congress simply tolerating the pardon of the hundreds of thugs who invaded the building, but the precedent of Trump exhorting a mob to attack Congress, then having that mob actually, immediately attack congress, and then having Trump get away with it due to the pardon power is literally a precedent for anything. A future precedent could incite his followers to murder congress members he did not like and who did not sufficiently support him. In that context, which remaining congress members would be brave enough to vote for impeachment? For conviction and removal?
I don’t know the answers to the questions raised by such pardons. Since they are unprecedented, however, it’s likely that even an expert on Congress’ inherent powers and the history of separation of powers under the US constitution would be likewise unable to provide a final answer (though they could illuminate the boundaries of the question, the boundaries of the likely answers, and the risks involved far better than I have here or even than I could with research).
What I’m trying to communicate instead is something wholly different: we literally cannot tolerate a minute of complacency. That’s all Trump needs to grab a napkin and create a constitutional crisis literally as grave (though not as violent) as the question of whether a state may secede from the union.
I am terrified, and, frankly, think that the people I’m talking to aren’t terrified enough. And all I’ve analyzed here is the pardon power. But it is sufficient: there is no military aide, there is no system of checks and balances, there is no lengthy procedure spelled out in statute that can prevent Trump from eliminating all reasonable checks against dictatorship using just 44 seconds and a napkin.
He must go. He must go NOW.
ETA (2:53pm PST): The NYTimes is now reporting that Trump is considering a self-pardon more seriously than I knew. This is not making me feel better.