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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Great Article on Why the Left Gave Up Violence

The Washington Post has a great article on why the left gave up violence.  The two first are basicially that it is counter-productive, and that there are better ways to get change.  Te other however, is much more interesting, and worthy of much thought:

The third and most important reason for giving up violence can be found in the new makeup of the American left. Emerging out of the rubble of the 1960s, the modern left, which coalesced around George McGovern’s quixotic 1972 presidential run, effectively represented a gathering of fugitives. African Americans, Hispanics, women, gay men and lesbians, Native Americans, and workers: These long-ostracized groups, which came to replace the New Deal coalition anchored by the white working class, were the very peoples against whom violence had been done for so long. Their painful histories made them instinctively averse to, and intolerant of, political violence. Those who had survived lynchings, beatings, bombings, sexual violence, forced removals and economic exploitation were least disposed to employ them in return. In 1972, those groups were often on the far left, but they eventually became the spine of Barack Obama’s electoral coalition.

Even while the fringes of the left were drawn to violence by overwhelming frustration (not to mention FBI provocateurs), most were profoundly ambivalent, probably in major part for these reasons.

It occurs to me that the only way the right seems to have to respond to those whose claims and philosophy has been shaped in part by a family history of being at the very least at risk of being victims, is to embrace their own victim-hood — and the facts just do not support those beliefs.

This also suggests that the left might be better than we fear at reaching out to the right self-perceived victims on the basis of common “victimhood.”  At a minimum, in individual conversations, those on the left can tell stories that might create some sense of sympathy.  Of course, the sociopaths (like the Donald) will never feel any such empathy, but I simply refuse to believe that 30% are sociopaths.

And, a society built on an understanding of the risk of victimiztion would surely be a better one.

 

 

Enough Already — Move on to The End Game

I am tired of hearing talking heads tell us how terrible Trump is.

The discussion has to move on to legal removal processes strategies, and how to hold accountable those Republicans who continue to enable by silence, acquiesce, or worse.  Clock on the categories for discussions by type.

 

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).

manysides

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.

 

 

Speculation and Manafort’s Change of Lawyers

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.

Note:  This post appeared initially in my access to justice blog.

 

I have the Perfect Title For the Best Book on the Trump Presidency: One Million Minutes

While the exact number is subject to change when the nightmare ends, the concept is clear.  The book would begin something like this:

The now concluded Trump Presidency consumed one million minutes, five thousand presidential tweets, 100 million dollars in investigations, and ten cabinet firings or resignations.

Those minutes were perhaps the most fragmented, fast moving, chaotic, destructive, shocking, confusing and testing minutes in our nation’s history.

The damage done to nation, planet, international system and human beings will take decades to assess fully. 

Above all, the story of those endless minutes is the story of the ultimate resilience of our institutions, notwithstanding the weaknesses and failures of so many who were to play roles in those institutions as they faced the test.

I am less confident of exactly how the book will end, but I am confident that the ultimate resolution will put us on the road to recovery.

 

Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.