If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

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“Rants From The Madman”

Famously, when Jimmy Carter was president, the Boston Globe “accidentally” ran a headline over an editorial that read: “Mush From the Wimp.”  There was no Internet to make it go viral, but today surely it would.

Today, to label Trump’s tweets as “rants from the madman” seems almost an understatement, and there is already plenty of obvious commentary.  So here are some addition questions:

When will be start seeing resignations from the national security team?

Is the legal team now obliged to formally withdraw representations that they have made to the Fourth, and Ninth Circuits, and to the Supreme Court.  Remember, lawyers can not make affirmative mis-representations to a court.

Will we see resignations from the Solicitor General’s Office, or just an inability to find staff to do the work?

Is there any chance that the Supreme Court will now grant review in the “travel Ban case.”  The risk of them being dissed during the process, such as after hearing, or after decision, is great.  If I were Roberts, I would take no action till the Ninth Circuit agrees with the Fourth (as it surely will), and then see if I have seven or more votes to put the President firmly in his place.  If not, I would do nothing, at least till there is a split from another Circuit.  I do not see how the Court can afford to be seen to be baling Trump out after today.  And, a 5-4 either way would be an absolute institutional disaster for the Court (US v. Nixon was 9-0).

Does the almost systematic dissing of one cabinet member after another mean that a 25th Amendment majority is starting to build up?  What is Pence thinking tonight.

Many previously loyal Republican commentators seem numb tonight.  Republican politicians have fallen largely quiet.  When will they start raising issues of Presidential inability to do the job? 

Finally, whatever else you can say, you can not argue with the fact that each week, things move faster an faster.   Things that would, the prior week, have seemed crazy to suggest, actually happen.

Our brains are lagging indicators.  Like any tipping point, when it comes, it will come quicker than we can possibly expect.

 

Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.

 

 

 

 

 

Why “Americans by Birth” Are Threatened by “Americans by Choice” and How to Fix That

Its clear that many “Americans by Birth” are deeply threatened by “Americans by Choice,” also known as “immigrants.”   But, why?

Traditional explanations cite job fears, cultural threat, fear of the unknown, not to mention simple racism.  All surely play their role.

But let me suggest that some of the reaction is explained by the fear insight buried inside “Americans by Birth,” that they have actually shown less committement to this country that “Americans by Choice,” most of whom have displayed determination, ambition, risk-taking, and sometimes extraordinary courage to get here.  (I certainly exclude my own privileged path here from this description.)

I wonder if “Americans by Choice,” particularly those already public about their status, should explicitly make the point that: “We Americans by Choice thank you, Americans by Birth, for building this into the country we want so much to stay in and help continue to build.”

That is a hard message to reject, and while perhaps implicit in the desire to stay, not necessarily yet heard by those in fear.

Do Not Call Us Immigrants, Call us “Americans By Choice”

That’s what I am, that’s what millions of us are.

So, why are we lesser Americans, or rather why do so many think so.

If anything, the argument that “we Americans by Choice have shown more committement to America” would be stronger than the one that “Americans by Birth have shown more committement.”

And, pray, how come Americans by Ancestor Capture are so often the best of all?

Trump’s Leaker Threat Contains Big Loophole!

Trump threat tweeted today that “the spotlight has finally been put on the low-life leakers! They will be caught!”

That leaves a big loophole, since the vast majority are probably not”low-life” at all, but patriots.  They should be safe.

But then, grammar was never a strong point for the Donald.

Seriously, time to dust off our jury nullification research.  And, surely the necessity defense would be strengthened by Trumps prior expressions of support for hacking.

Do you really think that today you could get a conviction out of a DC area jury on these leaks?  Good luck on that one.

 

A Reflection on America’s Long Term Strength

I should start by acknowledging that there are no new ideas in the post.  I just want to remind us all of something its easy to forget in the news cycle.

Notwithstanding our largely paralyzed political process, a party and President with plans to effectively destroy our openness and our generosity to the less fortunate, and an international environmnt with several major players whose committement to the values for which we have stood is, dubious to say the least, our overall assets are such that any other country and leader could only dream that their nation will possess them in their children’s time, if ever.

Not only do we still have massive economic power now backed by a powerful innovation machine, we have most of the leading educational institutions, speak the utterly dominant language, have a human capital pool from every country in the world, democratic values that remain a beacon for those of goodwill throughout the world, a political system with checks and balances that usually work, although not always as quickly as they have in the last three weeks, and not just a free free press but a system in which multiple layers protect that essential ingredient of freedom and progress.  (If you have any doubt about how all those interact in a time of crisis, just look at the list of amici in the immigration case in the Ninth Circuit, as discussed here.)

Now, lots of terrible harm is going to happen to lots of people.  The sate net will take vicious hits.  There will be serious limits on voting rights.  Government support of education and research will be very seriously hit.  Only by a miracle will the damage to our health care system be less than the good that is done — although “repair” might end up giving us a better system in some states.  One could add to this list.

But, unless our entire political system is destroyed (and I am actually less worried about that right now) most of our essential uniqueness will remain.  Unless things get much worse, people will still want to study, teach, and invest here.  They will still see English as the only non-native language they need to speak.  Above all, we will remain the only country that large groups of people in every country see as the model to emulate.

If we are really lucky, or rather if we really deserve it, the way we ultimately overcome our current challenges will enhance our uniqueness and appeal.  Few countries have the capacity for defense in depth of democracy that we have already shown.  It may take four years, or even eight, but this too will pass.  To quote Lee Hayes from an earlier era: “I’ve had kidney stones and I know.”