By: Dennis Rohatyn
When Judge (now Justice) Amy Coney Barrett was confirmed by the Senate for a seat on the Supreme Court, she refused to answer any questions about the possibility of a Presidential self-pardon, on the grounds that they were as yet purely hypothetical, and that she had not had time to review the laws that might pertain to such cases.[1]
Since hypothetical cases are the stock-in-trade of jurisprudence, her reply was both evasive and sophistical. Every first-year law student examines hypothetical cases, as does every experienced attorney and jurist.
More astonishing than such pettifoggery was Justice Barrett’s claim (or excuse) that she needed more time to consider relevant rulings, statutes, precedents, and policies pertaining to self-pardon. Just how complex is the question of self-pardon, anyway? Granted, legal scholars have examined the matter in detail, from antiquity to recent U.S. history.[2] But even they conclude that (in so many words) “Presidents cannot pardon themselves.”[3] Evidence to the contrary is scant, and is based entirely on charges of treason that date back to the Revolutionary War era, in which the civility shown toward offenders was the by-product of having to choose sides in the struggle for American independence.
Those who remained loyal to Britain or (if you prefer) were on the wrong side of history were occasionally forgiven, just as they sometimes were after the Civil War, a century later. But 1787 was a good time to show (and receive) clemency, since the Constitution was still being written, and no President had yet been elected to office. That is hardly a precedent for anything in law, unless “with malice toward none, with charity for all” be counted as a legal principle pursuant to Federalist Zeitgeist. Otherwise, there is no leg for ‘self-pardoning’ to gain standing, let alone to have a seat at the bench.
One commentator maintains that Trump does have the right to pardon himself, but that he shouldn’t exercise it![4] But is it a right, or simply an abuse of power? What a given President may do is not synonymous with they can or are able to do. Of course, Trump can defy or ignore the law; but that does not entitle him to do it. If there’s one thing that Prohibition taught us, it’s that prohibiting certain acts is no guarantee that they won’t occur—a lesson not lost on Moses, either.
Even the word “may” is ambiguous in certain respects, but what Presidents may not do is usually rather explicit. Unfortunately, Presidential power and arrogance have become so commonplace that the Executive branch of government must wonder what all the fuss is about. How many undeclared wars has the United States engaged in since 1945? How many are being fought in various parts of the globe, at this moment? How much of that revered “checks and balances” system has anything but lip service or ritual piety paid to it, since (e.g.) the Korean War?
And how much of domestic policy is now as beyond recall as foreign policy has been, for several decades?[5] So it is not surprising that any President (let alone the one still sitting in the Oval Office as I write these lines) imagines that self-pardon is a matter of course, a minor detail to be taken care of and disposed of by one swift stroke of pen.
When laws are not enforced, they cease to exist in all but name. Atrophy (or neglect) is the cause of death, in fact if not in principle. Since enforcement then depends largely on the will of the commander-in-chief, the covenant equals the sword, while the sword tears up the covenant. Identity, thy name is tyranny.
If Judge Barrett thought about that at all, she might recoil at the prospect. But since naked barbarity is concealed by fig leaves of adversarial politesse, one may miss the gulag for the gates, or be lost in a Katyn forest of doubt, even while digging one’s mass grave. Yet little reflection is required to grasp the consequences of timid (and false) neutrality, especially on an issue as momentous as this, both in this instance and in general. That self-pardoning is a form of special pleading is obvious; that the gambit is neither clever nor original ought to be apparent, as well. As devious ruses go, it’s got chutzpah, if that counts: but it’s both self-serving and (as we shall see) self-refuting. Agnostic apologias are of no avail: A decision not to decide, or to wait until “all the facts are in”[6] is both an evasion of responsibility and (in effect) a defense of the indefensible.[7] Or to quote Lincoln, “we cannot escape history.”[8] Justice Barrett’s passive aggression can’t disguise her verdict. It just reduces it to tacit absurdity. She might have done better to cite the immortal lyrics of Gilbert & Sullivan, from The Mikado (1885). Ko-Ko, faced with the dilemma of applying the death sentence as if it were the Categorical Imperative, decides that as “Lord High Executioner,” he “shall not cut off another’s head, until he’s cut his own off.” Falstaff couldn’t top that sage edict, let alone Solon or Solomon. Too late to do Robespierre any good, but it might spare us an impeachment or two, provided that the executioner doesn’t execute himself by mistake, or by carrying out a universal bloodbath, without exception. Meanwhile, in what passes for the real world, people ask whether a Presidential self-pardon is possible, as if that question had any meaning, except as Kafkaesque fiction.
The answer is No. Why not? A simple syllogism suffices as the explanation: (1) if a sitting President could self-pardon, that individual would be above the law. (Quod licet Jovi—and shades of Richard M. Nixon, post-resignation).[9] (2) If the President is above the law then the Presidency is simply a monarchy. (3) If the President is a monarch, then the United States is not a democracy, and the Constitution is both invalid and dead. (4) If the Constitution is passé, then it is not necessary to have a Supreme Court—indeed, an “independent judiciary” is wholly incompatible with monarchy. Even a benevolent despot acts out of noblesse oblige, not parliamentary law or decree. Custom is not compulsion; “common law” is no more binding than the magna carta.
Conversely, if the President is not above the law, then self-pardon is out of the question (as it should be), and the rest follows, exactly as it would for any other citizen, subject to the due process clause of the 14th Amendment and all of the “inalienable rights” guaranteed by the laws that define the democracy that we espouse.
If there is a “Constitutional crisis”[10] in the United States, one way not to solve it is by allowing self-pardons for anyone, let alone a President in office. If you do that, then (like Ko-Ko) Justice Barrett would be out of a job, even if she didn’t lose her head over it. To say it in a single sentence, the act of self-pardon begs the question of someone’s legal guilt or innocence:[11] a textbook fallacy, with which every student of logic is familiar.[12] That is why Justice Barrett’s reluctance is as baffling as it is absurd. It shouldn’t have taken her more than thirty seconds to respond that self-pardon contradicts the rule of law, which is why judges are required to recuse themselves from cases in which there is a (potential) conflict of interest, or even the appearance of impropriety, undue influence, prejudice, or anything that might taint the verdict.
Self-pardon is an obvious example of that, which is why the Framers didn’t need to mention (and exclude) it while enumerating the range of Presidential pardoning powers in Article II of the Constitution. It was self-understood, in the same way that “all men are mortal, therefore, Socrates is mortal” is, in logic. It is unnecessary to make it explicit, except when there is any verbal or semantic confusion.[13] To insert the missing premise is a formality, if not an insult to the intelligence of the reader (or audience).
Such matters require no discussion; they are self-evident, so to speak.[14] Even the fabled DOJ (Dept. of Justice) memo on the subject, penned two weeks prior to Nixon’s resignation, begins by acknowledging that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” The memo proceeds to cloud the issue, yet it (reluctantly) concludes that “. . . the President’s pardoning power . . . does not extend to the President himself.”[15] So much for loopholes—and the fables that give rise to and then are based on them. No amount of obfuscation or subterfuge is sufficient to undermine the point—Nixon’s lawyers knew that, and so (despite bluff, bluster, and rhetorical posturing) do the attorneys now representing Donald Trump. Period, end of sentence—or the beginning of one, if Trump doesn’t watch out! No matter how blasé he may be about having done nothing wrong, he is not a “victim” in any sense, but precisely the opposite.
So where does that leave us? That’s easy. Justice Barrett aside, no one should fail to recognize and apply the relevant tenet of jurisprudence, since it is an axiom of reasoning that transcends culture, if not time and space. As an “originalist,” or what Nixon himself called a “strict constructionist,”[16] it behooves her (and anyone else who might share her doubts, hesitations and misgivings) to uphold a principle that is in every sense fundamental to Constitutional government, without needing to study the matter in detail, or deliberate on it at length to make a clear and cogent statement concerning it. QED.
Conversely, it is possible to absolve someone in advance of their arrest or indictment without assuming that they committed a crime, or have violated the law. A blanket pardon protects someone from prosecution, regardless of the outcome. Hence it does not follow that if Trump were to pardon himself he would in effect admit to being guilty of anything. Whatever Trump did or didn’t do prior to any executive act of self-exoneration is beside the point. What is relevant is the act itself, which is illicit. Pardoning oneself does not beg the question of one’s guilt or innocence.
(Assuming that it does, does beg it). The fault lies, not in what Trump (or anyone else) did or didn’t do to merit pardon, but in presuming to decide the merits of one’s own case, regardless of the verdict. There’s the self-referential rub that rubs both law and logic the wrong way.
Yet that still leaves one matter open for discussion: why is anyone besides Justice Barrett even contemplating the possibility that President Trump might pardon himself before he leaves office? Why did the Senate bring the matter up? Why is such a loophole even conceivable?
Media reports indicate that Trump has been pondering this strategy since 2017.[17] Notably, he has been “obsessed” with it ever since it was brought to his attention. By whom, I wonder? Or did he think of it himself? Whether it was auto-suggestion or the brainchild of a shyster on retainer makes no difference, but it would satisfy someone’s biographical curiosity to know.[18]
Moreover, since Trump views himself as a “victim” of a “witch-hunt” and as one who has been hounded and persecuted since the day he took office, his rationale for self-pardon (so we are told) is the basic right of self-defense, as if he were on trial for murder and entered a not guilty plea on those grounds. At least one member of Congress agrees with that;[19] apparently the consensus among Trump’s most rabid supporters is that he has been unjustly accused of crimes, even if acquitted by at least one tribunal (the Senate) only a few months ago (Feb. 5, 2020).[20] Thus he must pardon himself to prevent being formally accused after he leaves office, even if he is not brought up on charges in a federal court. Is there any merit in such an appeal? None, unless we want to dismantle the legal system entirely.
Since Trump can’t be accused of “abuse of power” once he is no longer President, any charges brought against him would be brand-new, hence not subject to a double jeopardy clause. (He could be tried for abuse of power more than once during his term of office; impeachment proceedings may occur an indefinite number of times, even on the same stated grounds).[21] The question of Mr. Trump’s attitude toward “witch-hunters” (if any) is irrelevant, both because he is a public figure who (by definition) is “fair game” even for vile, hostile and outlandish criticisms[22] and because his personal feelings about the matter have no legal standing, either. Trump’s interior monologue is a matter for psycho-historians, not jurisprudence.
As for self-defense, that is a plea, not a verdict. To equate the two is (again) to beg the question, just as it would be at a murder trial. Long live the obvious distinction. At least, it should be that.
The matter requires no further comment, yet of late it has become even more of an issue than it was whenever Trump or a member of his staff first breathed a word of it, either in public or private. What gives, besides our senses, and the logic that underlies the law, before or after experience confirms its soundness?
That the issue is being mooted is surely a sign of something: but of what? Fear of a coup? Ignorance of the law? Lack of “critical thinking” skills, which is a chic neologism for the laws of logic? Corrosive skepticism about democracy or “the rule of law” itself? Belief that “might makes right,” itself a fallacy refuted by Plato, but reinvented by a succession of sophists since Socrates died for their sins?[23] Or a combination of dread, cynicism, and moral confusion?
Whatever the etiology, it is a disease that claims far more victims than COVID, albeit not as visibly or viscerally. That demands critical thinking, not smug superiority or haughty disdain. It also requires empathy, and above all, imagination. That Kafkaesque fiction is close to becoming fact—it was already a century ago, when Kafka was alive.[24] If we are heading “through the looking glass,” and an Orwellian world is nigh, then Justice Barrett needn’t worry about having a career on the bench, for “the Law” is designed to keep people like her busy, albeit at the expense of everyone else.[25]
If (as Napoleon said) an army travels on its stomach, an army of bureaucrats and drones voyages via paperwork, stored on microchips and on iclouds in cyberspace. The banality of evil works overtime yet never runs out of material, with rubber stamps, camps and crematoria to match.[26] Clerks are still essential, even when they hint at rebellion if not treason; only the populace is superfluous.[27] If Donald Trump declares himself dictator, he will merely make that official, as Napoleon and so many others have done. Falstaff knew that first-hand, and was thrown under Prince Hal’s bustle, hence devastated.[28] Whereas, we’ve learned to take it in stride, to protect ourselves from being too damaged to go on living. Those who died to make the world safe for plutocracy are powerless to protest. But if they rose from the grave as one, they might not speak, until, as Pastor Niemoller prophesied, there was no one present to object, dead or alive. The courage to resist is strongest in those who should desist, and weakest in those who persist in granting their opponents the benefit of the adversarial doubt.
Hillary Clinton learned that the hard way. What was “deplorable” about her candidacy in 2016 was her reluctance (not inability) to resort to Trump’s level of visceral, ad feminam attack. Instead, she chose to turn the other cheek (“when they go low, we go high”). That form of verbal non-violence (or passive-aggressive rebuttal) doesn’t work unless you’re a saint. And, as Orwell sagely observed, “saints should always be judged guilty until they are proved innocent.”[29] By pretending to be saintly, instead of stooping (for the moment) to conquer her foe, Hillary merely emboldened The Donald, as did Obama by ignoring ‘birtherism’ for as long as he did, hoping that it would go away. It didn’t. Tolerating the intolerant sounds fine in principle,[30] but in practice, it self-destructs.
The enemies of freedom have no sense of humor, let alone irony or paradox. The worst are full of shit; the best are full of themselves; the center is gone, only the extremes coincide, and the Bacchanalian revel is a dialectic of drunken rage, fed by demagogues on thrones thirsting with envy and greed.
Thirsting thrones? It’s fiction—or is it? Check your metaphors at the door, but don’t ask the door-keeper to let you in the House. There is no entrance, no exit, and no door-keeper, either. Like God, Santa Claus, and the Constitution, it’s all in your head. You imagined it, like Scrooge, Dorothy, or the last century, and all the ones to follow.[31]
The Constitution? It belongs in the dustbin of history, under “rhetoric.”[32] Keep the files straight—that’s what clerks are for, even in hell. And if you have nine lives, spend each of them with one Justice at a time. That way, you’ll be all alone when you’re through, and can pardon the one member of SCOTUS left sitting: go right through that door, where you may recuse yourself eternally. Yet in the end it will not avail. For self-pardoning is unpardonable—as reckless as it is reprehensible, as absurd as it is antithetical to the very meaning of justice. It is laughable, yet not the least bit funny. As a parody of monarchy, neither the Queen nor anyone else should be amused by the prospect of such obscene jests.
Begged question or not, there is unintended wisdom in Trump’s morbid fascination with self-pardoning. It does say something about him. As Zola might put it, qui s’excuse s’accuse. As ye conceal, so shall ye reveal thyself. Alas, like many of her new peers, Justice Barrett doth protest too little. When it’s all or nothing, Donald Trump knows just which side to take, and whom he can count on to give in to his demands. Peremptory and pre-emptive rule by decree makes short work of liberty, first and last casualty of tyranny. Judge and jury alike know what that 1-0 decision means: as was written, loser takes all. But read the fine print: and the first shall be last.
References:
[1] “Asked by Democratic Senator Patrick Leahy whether a president could pardon himself for a crime, Barrett said the ‘question has never been litigated’ . . . ‘That question may or may not arise but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view,’ Barrett added.” Lawrence Hurley, Patricia Zengerle, Andrew Chung, “Trump’s pick Barrett calls Presidential self-pardon an ‘open question,’” reuters.com, U.S. Legal News, Oct. 14, 2020. Similar news stories appeared simultaneously in dozens of other sources.
[2] Robert Nida and Rebecca L. Spiro, “The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power,” Oklahoma Law Review Vol 52 (1999), 197-222.
[3] Brian C. Kalt, “Pardon Me? The Constitutional Case Against Self-Pardon,” Yale Law Journal Vol. 106 (1996-97), 779-809.
[4] Richard Epstein, “Pardon Me, Said the President to Himself,” Wall Street Journal, June 5, 2018. I am indebted to Gene Healy for his crisp and concise analysis of the literature on self-pardon, which aided me immeasurably. See “Pardon My Skepticism,” cato.org, June 11, 2018.
[5] Cf. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston, 1973); Louis Fisher, Presidential War Power 3rd ed., rev. (Lawrence, KS, 2013). The domestic front is complicated, yet still dominated by executive fiat and unilateral edicts, even when the President appears to be a mere figurehead, engulfed by a Weberian bureaucracy. For conflicting accounts of this dialectic, see Richard Neustadt, Presidential Power and The Modern Presidents, rev. ed. (New York, 1990); Fang-Yi Chiou and Lawrence S. Rothenberg, The Enigma of Presidential Power (New York, 2017); and Andrew Rudalevige, By Executive Order (Princeton, NJ, 2021). John Yoo, Defender in Chief (New York, 2020) insists that Trump has done much to “restore” checks and balances, which is like saying that Adolf Hitler did much to restore Germany’s rightful place in the world.
[6] Reminiscent of Gen. Buck Turgidson (George C. Scott), in Dr. Strangelove (1964, dir. Stanley Kubrick).
[7] Cf. William James, “The Sentiment of Rationality” (1882), in John J. McDermott (ed.), The Writings of William James: A Comprehensive Edition (Chicago, 1977), 317-42.
[8] “Annual Message to Congress,” Dec. 1, 1862, in Roy P. Basler (ed.), Collected Works of Abraham Lincoln (New Brunswick, NJ, 1953), Vol. 5, 537. Lincoln anticipates James’ insight that the universe depends on us quite as much as we depend on it. Neither one can exist apart from the other without suffering both immediate and fateful consequences.
[9] “Well, when the President does it, that means that it is not illegal.” [Frost: “By definition?”] “Exactly.” David Frost Interviews Richard Nixon, dir. Jorn Winther, Part III, “War at home and abroad.” Air date: May 19, 1977. Since 9/11, those “brazen words” have “returned with a vengeance,” as if Nixon were a prophet of totalitarian dictatorship, rather than a thief making lame excuses for himself after being caught in the act. James Reston, The Conviction of Richard Nixon: The Untold Story of the Frost/Nixon Interviews (New York, 2007), 9, 180. Unlike Polonius’ platitudes, Nixon’s tautologies might amuse us if they weren’t so sinister. Whereas, Trump dispenses with pure rhetoric and appeals strictly to force.
[10] For a global analysis, see N.W, Barber, The Constitutional State (Oxford, 2010). For the underlying problem, Jürgen Habermas, Legitimation Crisis [1973], tr. Thomas McCarthy (Boston, 1974). Since Max Weber defined authority as ‘legitimized violence,’ no one has advanced a step beyond him or gone further than Thucydides did in the Melian Dialogue (Peloponnesian War, 5.85—116) to show that might does not make right, although Lincoln reversed the phrase (“let us have faith that right makes might”) while running for office (“Address at Cooper Union Institute,” Feb. 27, 1860, in The Collected Works, op. cit., ed. Basler, Vol. 3, 550). Yet a glance at the words themselves suffices to distinguish them. If they were synonymous, it would make no sense to compare them. Hence the very attempt to equate them reduces itself to absurdity. G.E. Moore called such semantic dodges examples of “the naturalistic fallacy” (Principia Ethica [Cambridge, 1903; rev. ed., 1922], Chap. I). They are elementary category mistakes, like conflating umbrellas with rainfall, or sugar with cubes.
[11] See Douglas N. Walton, Begging the Question: Circular Reasoning as a Tactic of Argumentation (Westport, CT, 1991). Since “A, therefore A” is a valid argument (one whose conclusion follows, given the premises), the fallacy committed by petitio principii is subtler than one might suppose!
[12] Socrates used it to show that justice (dikaiosyne) can’t mean “helping your friends and harming your enemies” without self-contradiction (Plato, Republic I, 331B—335C). Yet many people still define ‘justice for all’ as if it meant ‘justice for me and mine,’ which is no advance on nativism and birtherism, let alone, Athens or Sparta.
[13] Aristotle called such arguments enthymemes. He realized that arguers often omit certain premises, not because they are uncontroversial but to avoid controversy, or else to smuggle an unsupported premise into an argument and pass it off as accepted or agreed upon. Innuendo is dishonest, even when the premise itself withstands scrutiny. But only a pedant would insist on filling in all the blanks. Aristotle also noted that axioms can’t be proved, but must be assumed in order to make proofs of theorems possible. The law of non-contradiction is a case in point. It is basic to all forms of thought, yet any would-be proof entails an infinite regress (Metaphysics IV.1006a1-28). Likewise, you cannot prove the law of identity (A=A), or that ‘equals added to equals give equals’ without arguing in a circle, that is, assuming the premise that demands proof, and thus begging the question. Either you see it or you don’t. Even reason (logos) rests on intuition (nous). Gödel’s second incompleteness theorem (1931) vindicates Aristotle’s exemplary caution, albeit in ways that his finite universe of discourse could never encompass, much less countenance.
[14] “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” (U.S. Constitution, Article II, Section 2). Since Trump has already been tried for impeachment, he may issue pardons for others, as he is wont to do. But he cannot pardon anyone undergoing impeachment. Hence there are prescribed limits to his pardoning power, even when he is not directly involved. Far from being absolute, Presidential pardons are confined to specific classes of federal cases. Conversely, self-pardon is ruled out, since self-exemption is incompatible with the rule of law, thus making any form of parliamentary government pointless. If self-pardon were licit, the Constitution would annihilate itself. Mr. Trump wouldn’t mind that at all, but the nation might feel a twinge of regret as the eternal flame was extinguished.
[15] “Presidential or Legislative Pardon of the President,” 3 pp., August 5, 1974, online at justice.gov/file/20856.
[16] Like ‘law and order,’ “strict construction” was political code for “no civil rights, no abortion rights, no nothing.” The irony of such phrases is that if they were taken seriously, Jefferson should never have purchased Louisiana. Since he did, either give it back to France (or Spain), or admit once and for all that, as Justice Holmes said, “the life of the law has not been logic; it has been experience” (The Common Law [1881], repr. in Richard A. Posner, (ed.), The Essential Holmes: Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr. (Chicago, 1992), 237. Unfortunately, most jurists have no experience, except for being present in court.
[17] Zachary B. Wolf, “Trump Can’t Pardon Himself. He May Still Try,” cnn.com, Nov. 25, 2020. Wolf relies on an earlier report by Even Perez, Pamela Brown, Jamie Gangel & Jeremy Herb, “As Trump Wrestles with Defeat, Pardons Loom for Allies—and Himself,” (CNN, Nov. 12. 2020). Trump’s preoccupation with the subject is entirely understandable, given his conduct since taking office. Cf. Allan J. Lichtman, The Case for Impeachment (New York, 2017). Pathology does not preclude rationality, even as deep delusion does not entail self-deception.
[18] Cf. Mary L. Trump, Ph.D., Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man (New York, 2020). Although insightful in many ways, serious readers should consult Mark D’Antonio, The Truth About Trump (New York, 2016), Michael Kranish & Marc Fisher, Trump Revealed: The Definitive Biography of the 45th President (New York, 2017), and above all, David Bromwich, American Breakdown: The Trump Years and How They Befell Us (London, 2019). For family background, Gwenda Blair, Donald Trump: Master Apprentice [2005], rev. ed. (New York, 2015) is indispensable. Most of the literature about Mr. Trump is either shallow or suspect.
[19] Sam Dorman, “Matt Gaetz suggests Trump should pardon himself, potentially Joe Exotic,” foxnews.com, Nov. 24, 2020. Rep. Gaetz was interviewed a day earlier on “The Ingraham Angle” (Fox News, Nov. 23). Trump has other options, including seeking asylum in a friendly foreign country to avoid prosecution in New York State, for which even a pardon by his successor, though highly unlikely, would be to no avail. He might also resign prior to January 20, 2021, thus allowing acting President Mike Pence to save him from complete disgrace, as Gerald Ford did for Nixon. Coupled with fast flight to Brazil, to join forces with President Bolsonaro (himself under fire, but still in power) and avoid extradition back to the US, that is likelier to occur than a clumsy stab at self-pardon, and in pragmatic terms, likelier to succeed. Barton Gellman, “The Election That Could Break America,” theatlantic.com (Sept. 23, 2020) compels us to realize that Trump will stop at nothing, unless we are determined to stop him. That is why we imagine that self-pardon is possible, in much the same way that Big Brother postulated that 2 + 2 = 5.
[20] On the semantics (and mechanics) of impeachment, see Michael J. Gerhardt, Impeachment: What Everyone Needs to Know (New York, 2018). Prof. Gerhardt, who testified at the impeachment trial, stated categorically that if Trump’s offenses weren’t impeachable, nothing is. If Trump pardons himself, he will merely add to the list, if only by placing himself beyond recall. Even God treated Job with more respect when He answered from out of the whirlwind, and rebuked His children in their pride (Job 40:6, 41:34, 42:6), not granting due process.
[21] Prior to his impeachment trial, one prominent conservative spokesman predicted that Donald Trump would be “ . . . the first president elected twice without carrying the popular vote. And the first president to be impeached twice.” Michael Brendan Dougherty, “Trump’s Impeachment Will Be Trump’s Fault,” nationalreview.com (October 23, 2019). While he was wrong, as counter-factuals go, his prophesy wasn’t far off the mark.
[22] Cf. Rodney J. Smolla, Jerry Falwell V. Larry Flynt: The First Amendment on Trial (New York, 1988). Throughout his Presidency, Trump’s belligerent attacks on the press have had had far more of a “chilling effect” on free speech than anything dreamt of by the scribes who dared to goad him. For a painstaking analysis, see Harold Holzer, The Presidents vs. The Press. The Endless Battle Between the White House and the Media—from the Founding Fathers to Fake News (New York, 2020), 402 ff. Holzer concludes, “the greatest threat to the traditional equilibrium that usually exists between the press and our presidents comes from neither the rogue belligerence of an independent media the jarring bellicosity of a headstrong president. It comes with the loss of a universal acceptance of objective truth” (442-43). Unfortunately, Trump and his entourage are largely responsible for both thesis and antithesis. So much so, that we conflate “objective truth” with “universal acceptance,” which defeats any attempt at synthesis, and reduces truth to the sum total of collective belief, be it enlightened or benighted.
[23] Despite his reputation, the author of The Prince (1527) wasn’t among them. If anything, just the opposite: our Florentine savior, disguised as the devil. Cf. Sebastian De Grazia, Machiavelli in Hell (New York, 1989). If Machiavelli was not a Machiavellian, history has surely returned the compliment by crucifying his name. Yet amid a cacophony of conflicting claims, his was the voice that defied despotism by disclosing its secret.
[24] Ann Douglas makes a compelling argument that every problem we face now arose in the aftermath of the first World War, and that nothing has changed since then, except the size of our bombs and the magnitude of misery among both rich and poor. Terrible Honesty: Mongrel Manhattan in the 1920s (New York, 1995).
[25] Cf. Franz Kafka, The Trial [1925], new tr. Breon Mitchell (New York, 1998), esp. the Scholastic distinction between “actual acquittal” and “apparent acquittal” (152-61). When verbal fog is ubiquitous, “Jarndyce” sets in, until everyone is morally bankrupt, while the laws of fiscal entropy leave humanity “cold and dead.” Cf. Charles Dickens, Bleak House [1853], ed. George Ford and Sylvere Monod (New York, 1977), 5, 714.
[26] Cf. Lawrence Douglas, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial (Princeton, NJ, 2016), esp. 72, 82, 97-98, 255-56. As Douglas concludes, “. . . guilt is not to be measured by acts of cruelty or savagery alone; guilt follows function” (260; ital. in orig.). The Ur-source is Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil [1963], intro. Amos Elon (New York, 2006).
[27] The current global pandemic is an exercise in Malthusian logic, calmly disposing of human waste to make the economic world safe for plutocracy. The pharmaceutical “cure” for COVID is itself part of the disease.
[28] So was Shakespeare, or else why promise the audience a sequel, in which “our humble author will continue the story, with Sir John in it and make you merry . . . Falstaff shall die of a sweat, unless already he be killed with your hard opinions” (Henry IV, Part II, Epilogue, 25-33). Or as Davy explained to Shallow, “ I grant your Worship that he is a knave, sir, . . . but a knave should have some countenance at his friend’s request” (ibid., V.1. 43-45). If Donald Trump merits clemency, it is only because another prince was more lenient than Hal: “use every man after his desert and who shall ‘scape whipping?” (Hamlet II.ii.555-57). If the Prince of Peace absolves Trump, I won’t argue with the verdict. Short of that, I admonish Justice Barrett and the High Court to budge not, lest they be budged (cf. Matthew 7:1-5).
[29] “Reflections on Gandhi” [1949], repr. in George Orwell: A Collection of Essays (New York, 1970), 171. Sartre made a similar point: saints enable sinners to go on sinning, even as they cleanse them of all their sins. Thus winners lose, while “loser wins.” Saint-Genet: Actor and Martyr [1952], tr. Bernard Frechtman [1963], repr. (Minneapolis, 2012), 68, 109, 168, 184, 229, 248, 569, 570, 585. If Christ is the exemplar of what Nietzsche called “Jewish slave morality,” then the 2016 campaign epitomized Marx’s dictum that history repeats itself, first as tragedy, then as farce.
[30] Cf. John Stuart Mill, On Liberty [1859], ed. David Spitz (New York, 1975), Chap. II. “On the Liberty of Thought and Discussion,” esp. 48-51. As Mill shows, fallibilism is the only infallible rule of discourse. But those who renounce all forms of censorship are always the first to be censored, and the last to be heard. Unlike Thoreau, they never get out of jail, as civil disobedience becomes a capital crime.
[31] See Gregory Claeys, Dystopia: A Natural History (Oxford, 2017), esp. 497-501.
[32] Cf. Kenneth Burke, “The Dialectic of Constitutions,” A Grammar of Motives [1945], repr. (Berkeley, CA, 1969), 323-401, esp. “Meanings of ‘Constitution’” (341 ff.) and “Role of the President” (391 ff.). Every ruler prays for divine favor or mercy, but some appoint themselves representatives or incarnations of God. The buck stops when the prime mover is seconded by those who see themselves as successors, or who orbit the despotic sun to bask in its oracular glow. In the end was the Word, and it was fatal.
A native New Yorker, Dennis Rohatyn took his PhD at Fordham. He moved to the West Coast in 1977. His works include “Out of My Mind,” “The Flight of Theory”, and “Cartesian Requiem.” He writes about everything, but his true vocation is the inhuman condition.
Image: PAM illustration
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