The Presidential Self-Pardon

Many Presidents have brought their office into disrepute. Often, sex is involved but occasionally it is money. In the case of one President, Warren Harding, it was both. He presided over the Teapot Dome scandal and it was a well-kept Washington secret that his personal study in the White House was often used for afternoon delights. Roosevelt, Eisenhower, Kennedy and Johnson all conducted extra marital affairs, which were not disclosed until after their deaths. As for Clinton, he was not so fortunate in keeping his affairs secret and was impeached for Presidential Peckerdilloes, excuse the pun. My point is that the current occupant of the White House is not alone in engaging in personal conduct that is both un-presidential and off-putting. I shan’t go into detail. Just read my blogs for the past eight months.

Last weekend, in response to the investigation into the Russian election scandal, President Trump said he had complete power to pardon relatives, aides and possibly even himself. He tweeted that he had no need to use the pardon power at this point but left the option open. One of the tweets stated: “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.”

Two points: one, on numerous occasions I have asked if Mr Trump understands the Constitution. For example, his several complaints about the voting processes of the Senate and its power of filibuster show a lack of knowledge of political process which any first year university political student would possess. Two, why would the President mention pardons when no one has been charged, let alone indicted. As the French put it, “qui s’excuse s’accuse.”

Can a President pardon himself? A pardon is a government decision to allow a person who has been convicted of a crime to be free and absolved of that conviction, as if he or she were never convicted. In America, the pardon power for federal crimes is granted to the President. The Constitution states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include “the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties.”

The process is straightforward. All federal pardon petitions are addressed to the President, who grants or denies the request. Typically, applications for pardons are first referred for review and non-binding recommendation by the Pardon Attorney, an official of the Justice Department. Then the President decides. Bearing in mind the millions of Americans who spend their lives in jail, the pardon power is used frugally. Presidents Clinton pardoned 396, Obama 212 and George Bush Jr 74. It is a power used cautiously for good political reason. What if the pardoned criminal re-offends?

The pardon power has been controversial from the outset. Paper LXXIV of The Federalist Papers examines the subject in detail. For example, doubt was cast on whether the pardon power was available in cases of treason. Constitution legal expert, Laurence Tribe, is clear on the President’s rights. He states that the Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal.

            “The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.”

A President may conclude that even if a person has committed a crime, he acted in good faith to protect the national interest. President George H.W. Bush pardoned former Defence Secretary Caspar Weinberger in the Iran-contra affair. President Ford pardoned Richard Nixon for offences in Watergate. The President acts as a kind of super-judge, making decisions about the conduct of others. He cannot make a decision about himself. Self-pardon is impossible under the law. For example, four days before Richard Nixon resigned, his own Justice Department advised he could not pardon himself. However, the fundamental rule of law is that no one may be a judge in his own case.

 

So, I ask again, why is Mr. Trump talking about pardons? What does he know about the actions of his family and what has he done himself to bring the topic front and centre? We may be sure the media will not drop this one. Expect to hear a lot more about “crooked Hillary” ** as the President does his usual fighting back act, armed with smears, innuendo and the avoidance of fact. I suspect Trump misspoke. He was boasting about his powers and went too far but it is shocking to realise the chief executive not only knows so little about the law but fails to seek advice before he speaks.

Trump has gone quiet about the self-pardon. Instead he is tweeting his frustrations with the Senate for their failures on healthcare legislation. He also wants to ban trans-genders in the military, something which is bound to go through the courts. He seems to govern like a butterfly, hopping from one topic to another, without taking either his advisers or friends within the legislative branch into his confidence. Does he think he is a dictator, one who does not need to rely on teamwork? His new Director of Communications, Anthony Scaramucci, is also making the wrong kind of headlines in his first week in office. There is a rule in politics that when the communicator becomes the story, he has to go. For sure, we have never seen anything like this in modern American political history.

 

** I drafted this on Monday before the furore with Attorney General Sessions started. Having fired his NSA advisor and the head of the FBI, there is now talk that Sessions will go too, along with Robert Mueller, the special counsel in the Russian investigation. Any member of the executive branch serves “at the pleasure of the President” so no laws will be broken if Mueller is fired. However, politics will outweigh the law. When Richard Nixon fired Archibald Cox, the Watergate Special Prosecutor, the public outcry was the final catalyst for impeachment.

Governing American Style

Congressional Republicans are starting to resemble chickens with heads cut off, running hither and thither to no purpose. The House Republicans are divided on how to handle the federal budget, the debt limit, a rewrite of the tax code and more. The Senate is as divided but with the added conundrum of new healthcare legislation, which is unlikely to come to a vote.

The latest moves in Congress and the Executive are erratic, to say the least. First, the Senate majority leader, Mitch McConnell, has announced the summer recess will be delayed until August 11^th to try to deal with unfinished business. House Republican leadership seems unhappy with delaying the summer vacation for Congressmen. House majority leader, Kevin McCarthy, is effectively saying that the House has already done a great deal of business and members don’t need to hang around waiting for Senate action.

Second, the President’s agenda, set out in election promises, is in complete disarray. There is a possibility the President might himself order an emergency session of Congress to deal with the following matters: the annual budget resolution, which is one key to tax changes wanted by Trump; the necessary increase in the federal debt ceiling, without which there will be a federal government shutdown in September. And, of course there is the health care legislation, the other key to tax changes. Savings in federal spending after the repeal of Obamacare would free up billions in federal funds.

Last week, on his way to Paris in Air Force One, the President took time to chat to journalists on the flight. The topics moved around. On health care, Mr Trump said: 

            “I think, first, I want to do - well, we have a few things. We have a thing called healthcare.  I’m sure you haven't been reading about it too much. It is one of the - I'd say the only thing more difficult than peace between Israel and the Palestinians is healthcare. It's like this narrow road that’s about a quarter of an inch wide.  You get a couple here and you say, great, and then you find out you just lost four over here.  Health care is tough. But I think we're going to have something that's really good and that people are going to like. We're going to find out over the next - you know, we just extended for two weeks.”

Trump is surely the master of inarticulateness, not to mention the incomplete sentence! Remember the Presidential promises: “On the first day in office, we are going to repeal and replace Obamacare. We are going to build a big, beautiful wall” and, of course, “we are going to bring down taxes.” Who talks about the wall and tax changes these days? If Mr Trump was playing poker, I’d describe his hand as a busted flush.

If Trump is to free up funds, he needs to remove and replace Obamacare, which remains the law of the land. In June, the House of Representatives passed The American Healthcare Act but the Senate is struggling to pass its version, known as The Better Care Reconciliation Act. What is all the fuss? I’ll try to itemise the principal differences between the current Obamacare legislation and the AHA and BCRA proposals:

Under Obamacare, most Americans are required by law to have health insurance. If they don’t, they may be liable to pay a penalty. Both House and Senate bills remove this requirement but the insured may be fined if his insurance lapses, even if it is because the insured cannot afford increased premiums. Under Obamacare, large employers face penalties if they do not offer insurance to employees. Both House and Senate Bills eliminate this obligation. Currently, insurers cannot charge the elderly more than three times what the younger pay. Under both new Bills, the limit is raised to five times. Crucially, individual states could choose to expand Medicaid eligibility under Obamacare to include healthy adults. Both Republican bills end expansion rights. (Medicaid is the federal government insurance program for persons of all ages whose income and resources are insufficient to pay for health care.)

Most important, Obamacare prevented insurers from denying coverage or demanding higher rates for pre-existing conditions. The House and Senate bills differ but both allow insurers to be free from that restriction. There are many other changes afoot: waiver of essential health benefits allowing insurers to exclude treatments; no federal funds for Planned Parenthood; reducing tax credits.

To pass the Senate bill, the Republicans need 50 votes. (In the event of a tie, the Vice-President has the casting vote.) But two Republican senators are on record that they will not vote for the bill because it does not go far enough to dismantle Obamacare. Two others are not in favour because the Senate bill goes too far. To use the President’s own description, “it is mean.” The vote is due this week but will it happen? Over the next days, McConnell and Trump will be promising, cajoling, threatening and even blackening reputations to get their way. However, the latest reports indicate that the Senate healthcare legislation has been abandoned.

On Tuesday, Trump told reporters that he plans to “let Obamacare fail. It will be a lot easier.” That way, he said, his party would bear no political responsibility for the system’s collapse. “We’re not going to own it. I’m not going to own it,” the President said. “I can tell you the Republicans are not going to own it. We’ll let Obamacare fail, and then the Democrats are going to come to us to fix it.”

If this is Trump’s idea of how to govern, he urgently needs schooling. He would be well advised to look how his predecessors coped with government crises. Sitting back and doing nothing was not an option. President Harry Truman had to face extensive trade union militancy in the early years after World War II. For example, led by CIO head John L. Lewis, miners went on strike or work stoppages every year for five years. Truman denounced the union action as threats to national security and brought in the military, as industry, railroads and homeowners rapidly switched from coal to oil.

Trump should also read Robert Caro on how President Lyndon Johnson had the Civil Rights Act, 1964, and the Voting Rights Act, 1965, passed when he was held to ransom by his own party. Southern Democrats in the Senate filibustered but LBJ persuaded moderate Republicans to pass the needed legislation. President Richard Nixon also offers a lesson in governing. Despite the 1954 Supreme Court ruling in Brown v Board of Education, by 1968 America’s public schools were still not segregated. Nixon introduced the busing policy. It took just three months to achieve the desired result.

If Trump gets his current wish and Obamacare is allowed to fail, what happens to people who are not entitled to Medicaid but cannot afford insurance? America will return to the times pre-Obamacare when 40 million people or more had no medical insurance. Is it not time for the Republicans in Congress to abandon old-fashioned ideology and accept that the federal government has an important part to play in protecting the health of their citizens.

I am no expert on health care legislation but I suspect that there are serious problems with Obamacare. Would it not be best for Republicans and Democrats in Congress to work together to fix the problems of the Affordable Healthcare Act? Democrats would have to give up their ideological positions and accept, for example, that Republican high earners can’t be expected to pay for everything. Likewise, died-in-the-wool Republicans need to abandon old ideals of “rugged individualism” and the obligation for people to look after themselves. Health care is a sufficiently big topic to require bipartisanship. I hope that moderate American voters will contact their representatives in D.C. and demand they work together to fix the problems. For sure, the President, who vaunts his abilities as a deal maker, has either lost the plot or just doesn’t understand how to do his job.

 

Politics: Fact or Fiction.

Assume I was a novelist, writing political fiction. Wait a minute. I am a novelist who writes American political fiction. “Truth to Power” by J. S. Matlin, available as an e-book on Amazon.

Now, let me see... Let’s fast forward to December, 2017. It is three in the morning at The White House. President Trump, resplendent in his white Mar-a-Lago towelling robe with its emblazoned Presidential seal, is walking the corridors, holding his tablet. He is talking to himself.

‘I can’t get used to this building. Only three floors, except the basement. I should build another ten stories, maybe up to the height of the Washington Monument. I’ll tweet about this in the New Year. I’ll justify the project by saying It will increase the value of Pennsylvania Avenue for the people. I’ll tell the people I will build it at cost. They don’t need to know there’s cost and cost.’

Trump taps a tweet into his computer. “We’re making Christmas Great Again.” An aide approaches. “Mr President, you have a call from the British Prime Minister.”

“What now? So early. Can’t they sleep over there? It’s the middle of the night there surely. Hey a new slogan: ‘It’s Trump Time All the Time.’ Okay, I’ll take it in the Oval.”

Two minutes later, Trump picks up the phone.

“Hello, this is the President.”

“Good morning. I know you work in the middle of the night. I need to speak with you. It’s urgent.”

“Okay, Prime Minister Corbyn, shoot.”

“A few months ago, you promised Mrs May a quick trade deal after Brexit was concluded but nothing has happened. My constituent, Sandra, e-mailed me asking why there was no progress.”

“Has the Brexit deal been done? Exactly. That’s your answer to Sandra.”

“Mr Trump, Donald, when we met two weeks ago, I explained that there will be no Brexit deal.  Those damn Europeans are screwing my feet to the floor. They are making it so complicated. My people can’t get their heads round the negotiations. And anyway, I wasn’t elected to get us a Brexit deal. We’re breaking off negotiations. This makes the UK/US trade deal more important than ever.”

“We’ve offered you a deal. You said you didn’t want it.”

“Is that what you call a deal? No tariffs on American goods coming here and a mere 5% discount on tariffs paid by EU for the goods UK sends you? I’ve been making a case here for unity, no tuition fees, decent housing, good secure jobs and trade with America and other parts of the world. You know I have to get the trade issue right or I’ll have a real problem here.”

“You think you have problems? I can’t get a budget agreed so I can’t give the billionaires the tax cuts they deserve. Those goddam Republicans have royally screwed Healthcare because I won’t go far enough removing benefits and the Democrats are laughing at me because I’m stuck with Obamacare. The rich are paying too much just to keep the poor healthy. It’s not right. This is what you call socialism.”

“What’s wrong with that? My people want free education, nationalisation of railways, a 90% income tax on people earning more than £100,000 a year, that sort of thing, all of which is music to my ears. Before I forget, I’m sending you a present. A red flag, the symbol of the Labour Party, along with the CD of the song.”

“What song?”

“The red flag.”

“It’s a flag AND a song?”

“Indeed. It will look great hanging with the Stars and Stripes in the White House and Congress. Indeed, I think I’ll make this a term of our trade deal.”

“Mr Corbyn, your government stands for everything I hate. If I was a Brit, I’d have to pay like a billion bucks in tax every year. So if you want a trade deal now, scrap the bloody red flag idea and knuckle under to my terms.”

“Everyone knows I don’t respond in any way to personal abuse thrown at me. I’m on record saying I don’t mind personal remarks. Sticks and stones. And I don’t direct personal abuse at anybody.”

“How can you be a politician? That’s exactly how you win elections.”

“Donald, I want that trade deal. The British people want it. And you promised it.”

“Jeremy, which part of ‘politics’ do you not understand? Promises? Since when do politicians keep promises? Even I know this and I’m no politician.”

“When we met, I renewed that invitation to come to Britain and meet the Queen. Come over and we’ll talk. Visit my constituency in Islington with me. You have problems with Muslims. Get yourself here and meet some of them.”

“Yeah. Muslims, Mexicans, they’re all alike. We’re getting rid of them. It’s just beautiful.”

“Donald, my wife is Mexican.”

“Better tell her not to come here then.”

“We must find some common ground, Donald. Surely there is something we can agree on to build a workable partnership.”

“Sure, the mining industry. We’re bringing it back. You could too. Thousands of new jobs.”

“I can’t. We signed the Paris Agreement.”

“So did Obama and I unsigned it!”

“So, if I bring back mining, you’ll do a trade deal now?”

“Sure…Now how much coal can we export to you?”

At that point, the Prime Minister’s “pay as you go” phone ran out of money.

 

 

 

 

 

 

A Servant of the People? Really?

Are you as fed up with reading about Donald Trump as much as I am writing about him? Every week, there seems to be another Presidential outrage, unrelated to what one would regard as Presidential politics. Why would Trump tweet an old, staged video of himself beating up Vince McMahon, the head of the World Wrestling Federation, with a CNN logo replacement head?  Can you get more un-presidential?

Two years ago, the media was looking at the Republican front runners for the White House. Jeb Bush was an early favourite, as was Chris Christie, then the popular governor of New Jersey. Donald Trump had not made much headway and was looked upon as a joke. So what happened to Christie’s run? Hurricane Irene hit the American eastern seaboard in 2011, when Christie received praise from many, including President Obama, for the former’s handling of the crisis occurring on the New Jersey shores and elsewhere.  That was the time Christie urged his fellow citizens, “get the hell off the beach.” Last week he uttered the same refrain but for very different reasons. He was treating the New Jersey’s Island Beach State Park as his own property, having closed the beach to the public amid a local government shutdown.

Christie would be an appropriate subject for a Hogarth-like satire. Hogarth was an 18th century artist, famous for a series of eight paintings called “the rake’s progress.” The paintings told a story of the rise and fall of a wealthy man, Tom Rakewell, who wasted his money on luxury and ended up in debtors’ prison. Christie is a man who rose to become the front runner in the 2016 race for the Republican nomination for President but then fell out of political favour, crashing and burning.

At a news conference last week about the use of a beach as if it was his private domain, Christie told reporters: “I don’t know if it’s fair, but ... my family doesn’t ask for any services while we are there.” Later he added: “Run for governor, and you can have a residence there.” When asked if he got any sun, he retorted: “I didn't, I didn't get any sun today.” Later his spokesman explained: “He did not get any sun. He had a baseball hat on.”

It's difficult to believe this is a man who was the GOP's great hope just five short years ago. Some Republicans almost begged him to accept the nomination, when his approval rating was sky-high in a blue state and the party was unhappy with its other choices. However, in something akin to a modern-day Greek tragedy, Christie's career started a free fall in 2012 when the Bridgegate scandal hit. A bridge was closed by the New Jersey government to embarrass a local Democrat politician. The action led to criminal convictions of top Christie aides. It was soon followed by a 2016 Presidential campaign in which Christie gradually became the least-liked candidate. On realising he was not destined for the White House, Christie quickly embraced Trump. His stance was seen as currying approval for future favours.

New Jersey has since turned on Christie in stunning fashion. With about six months to go before he is term-limited and cannot run again for Governor, Christie’s approval rating is a desperate 15%, according to a June, 2017, Quinnipiac University poll. That is the worst approval rating Quinnipiac has found for any governor in two decades of polling across a number of states.

When the state government re-opened this week, following budget approval, Christie again explained his position for using the beach: “I don’t apologize for it. I don’t back away from it. I think my poll numbers show that I don’t care about political optics. Shame on those people who wanted to make this as if we were taking advantage of something. I just don’t agree with it, and I don’t believe it.”

This repeated denial seems to be in character with a man who clearly has trouble with the truth. If he was not taking advantage, why were no other New Jersey citizens allowed to use the beach? What was the Governor’s rationale for believing he was entitled to a privilege denied to his fellow citizens? Had I been at the news conference, I would have asked this question: “Do you believe you are still a servant of the people? If so, how do you reconcile this belief with your use of a beach as if it was your own private property?”

Christie is not the first public servant to have forgotten his place. Sherman Adams, Eisenhower’s chief of staff, was forced to resign in 1958 for accepting gifts from a supporter who was under investigation by the Federal Trade Commissions. Spiro Agnew, Nixon’s Vice-President, resigned for accepting “brown paper envelopes” from building contractors. Bert Lance, director of the Office of Management Budget under President Carter, resigned amid allegations of misuse of funds. He was acquitted. Reagan’s Secretary of Defense, Caspar Weinberger, was indicted on two charges of perjury. And so it goes on.

In case you think we Brits are pure as the driven snow, just go back to 2009 and the exposure by The Daily Telegraph of the abuse by some Members of Parliament in claiming expenses. MPs had claimed millions of pounds of taxpayers’ money unlawfully. A handful were prosecuted and imprisoned. For others, it was literally payback!

What is it that makes people in public life forget they are servants of the people, not the masters? Why does their election often result in a belief they are above the law and not responsible to all the voters? If I ever start to talk about my running for office, please remind me immediately of this blog!