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.




Did Trump Spontaneously Add the Problem Words to His Charlottesville Statement?

Most of the problems in Trump Charlottesville statement come from the phrase “amny sides.”  In fact, if you watch it, here, you see you will see that the phrase, actually repeated, at the 16 second mark, is delivered very differently from the rest of the statement.

The phrase is emphasized, by tone and repetition and it is underlined by an arm wave (an old rhetorical trick).


To me, the whole thing only makes verbal and non-verbal sense as a spontaneous addition by Trump.  In other words he wanted and needed to weaken and qualify an originally more powerful statement.

Note that at the beginning, he is clearly reading something, but at this critical point he looks up, not needing to be guided by the previously drafted statement and his body argue changes.

Moreover he similarly does not look at the written statement when referencing his name and that of Obama, and when he talks of how long the hated has been going on.  It might well be that this additional dilution by time is also added personally by him.

I would urge news organizations to do all they can to get the original draft, although when you look at this in this light, it all makes sense, even without knowing the written text.

If I am right, this is an additional insight into his soul, if any were needed.

Update, August 15.  Now confirmed.



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.

What Emma Lazarus Would Write Today

Christine Webb is a British poet of great accomplishment and also a close multi-generational family friend.

I feel honored that we are able to share this magnificent poem that Christine has written in response to recent actions taken in the name of the United States.  It is an almost unbearable reminder of the contrast between what our country used to be seen as, and what we are now doing.

We can only hope that the millions around the world who have been inspired by the best in us, even as they always saw our defects, will remember that this is in no way a majority Presidency, and that what is done in our name is not what the majority of us tried to choose.

webbI am certain that Emma Lazarus would have welcomed these words, even as she cried with us. (Statue of Liberty plaque poem here.)


For White Voters, It Was Education, Stupid

Nate Silver focuses on education’s impact on the result of the election, and on polling error.

The first conclusion: Education was almost everything in explaining the results of the race. Donald Trump substantially improved on Mitt Romney’s performance among voters without college degrees — especially white voters without college degrees. Hillary Clinton somewhat improved on President Obama’s performance with college-educated voters. The link between education levels and the shift in the vote is robust, even when controlling for other factors, such as income levels.

As the bottom of those links says:

First, it’s clear from the exit polls that for white voters, every bit of extra education meant less support for Trump. That is, it wasn’t just a matter of attending college or getting a degree. While much has been made of the college and non-college divide (which is stark), Trump actually won whites who earned only a bachelor’s degree by a fairly wide margin. Just as big a gap was between the votes of those who graduated from college and those who went to graduate school. The latter group supported Clinton in much larger numbers.

And, with respect to polling, going back to the top linked and quoted post:

In the 10 states with the largest share of white voters without college degrees, Trump beat his polling average by an average of 8 percentage points — a major polling miss. But in the 10 states with the lowest share of white voters without college degrees, Clinton beat her polls by an average of 3 points (or 4 points if you count the District of Columbia as a state). Overall, the correlation between the share of white non-college voters in a state and the amount by which Trump overperformed (or underperformed) his polls is quite high.

Following a complex regression, Nate concluded:

The share of non-college white voters was still a highly statistically significant predictor of the polling error, although Romney’s performance in 2012 was too.

Nate concludes that to reduce the reduce the error caused by likely under sampling of less educated voters:

But most pollsters apply demographic weighting by race, age and gender to try to compensate for this problem. It’s less common (although by no means unheard of) to weight by education, however. As education levels increasingly cleave voters from one another, more pollsters may need to consider weighting their samples accordingly.

I am unable to resist the point that if it turned out that more educated non-white voters voted more like white voters in general, surely some commentators would be advocating for limiting the franchise for non-whites to those with with more education.