Presidents are not Kings: Why Trump’s Pardon of Joe Arpaio was Wrong

President Trump was perfectly within his constitutional authority to pardon ex-sheriff Joe

Arpaio, and there is little anyone can do about it.  And that is the problem.  The concept of unlimited discretion of the president to issue pardons and reprieves is clearly inconsistent with the concept of limited government and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

The historical roots of presidential pardoning power are sourced in British monarchical power.  At one time British kings and queens had unlimited political power, subject to no checks and balances.  “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon.  To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.

Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89.  Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people.  No government official, including a king, should be given unlimited and unchecked authority.

Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson.  In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke.  So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights.  All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body.  The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.

However some kingly like powers seemed to work their way into the Constitution. Article II, Section  2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate.  These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all.  The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use.  Unfortunately the courts have not agreed to such checks.

In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the

"power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

The pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences.  While all these pardons met constitutional muster, no  doubt some could be considered abuses of presidential power.

Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford–or be subject to impeachment as Harvard law professor Noah Feldman contends.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent.  That decision and dicta are a relic from a different era and legal system.  If the American Revolution and Constitution stand for anything it is that no one is above the law.  Granting presidents unchecked pardoning power, especial in how Trump used it with Arpaio, is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt.  Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels"–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.

The Lessons of Charlottesville: Must we be tolerant of the intolerant?

Does the First Amendment require us to be tolerant of the intolerant?  The simple answer in the United States is yes, but only up to the point of violence, and only up to the point of where it involves government efforts to suppress speech.  Beyond that, tolerance is a social issue, and that is perhaps where the real danger lies in terms of threats to freedom and free speech.
Charlottesville was ugly in so many ways.  But the central question of the week is need we tolerate the intolerant?  There is the legal answer, and the social answer.  Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law.  Do we have a right to advocate hate?  The overthrowing of the government?  Should we be allowed to burn crosses, flags, or draft cards?  Is sexually-charged language or images discrimination or harassment? Can we, as Supreme Court Justice Holmes Jr., once mused, falsely cry fire in a crowded theater, and  is it permissible for political candidates to lie?  How far can our words go before they cross a line?  When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”
The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line.  Citing a litany of precedents it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Speech is speech, and it is protected until such time as it advocates imminent lawlessness that is likely or imminently to occur.  In Brandenburg, the Court ruled the KKK did not cross the line and their advocacy was protected speech.  Many might be surprised by this decision, but the Court drew a tough line in the sand–free speech is sacred and the government ought not to censor or prosecute it, no matter how ugly and hateful, unless it crosses the line into imminent violence.  That line might have been crossed in Chrlottesville with the violence.
The price to pay for freedom is that others have a right to say hurtful things or things we do not want to hear, and the government should not be the arbiter of what it truth.  As Justice Robert Jackson well-stated it in West Virginia v. Barnette, 319 U.S. 624 (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The First Amendment prevents the government from suppressing free speech.  But what about society?  The First Amendment does not apply to private actors or public opinion.  Private employers, internet hosts, and private individuals do not have to follow the First Amendment.  I am free to shun ideas I dislike and to disapprove of them and those who hold them.  Public opinion is the ruling sentiment in the US, for good and bad.  At its best public opinion and majority rule can do great things such as advocate for civil rights and equality, but at it worst public opinion is a destructive, censoring tool.  Fifty percent plus one of the population at one time sustained slavery, denied women the right to vote, and prevented same-sex couples from marrying.
James Madison, the principle architect of the Constitution and the Bill of Rights, as described in Federalist Paper number 10,  feared the  power of the majority faction to act “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Alexis de Tocqueville in his famous Democracy in America called this as the problem of the tyranny of the majority.” It is the problem of how do we balance majority rights with minority rule. The Constitution, and the Bill of Rights, are complex machinery that help to manage intolerance, abuse of power, and freedom by restraining the government.  At the end of the day, people can believe what they want, including hurtful and discriminatory things, but they Constitution and Bill of Rights stand as guardians against that.  Again to quote Justice Jackson in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.


Individuals can believe what they want, but they have no right to have their personal prejudicial beliefs translated into public policy.  
Yet James Bryce’s American Commonwealth saw something even more fearful than a tyranny of the majority–the fatalism of the multitude.

The tendency to acquiescence and submission, this sense of insignificance of individual effort, the belief that the affairs of men are swayed by large forces whose movement may be studied but cannot be turned, I have ventured to call the Fatalism of the Multitude...But the fatalistic attitude I have been seeking to describe does not imply any exercise of the power of the majority at all..In the fatalism of the multitude there is neither legal not moral compulsion; there is merely a loss of resisting power.

Elisabeth Noelle-Neumann’s The Spiral of Silence goes even further, describing the power of public opinion to encourage people to self-silence themselves.  The problem Madison, deTocqueville, Bryce, and Noelle-Neumann all noted was the suffocating power of public opinion and intolerance to silence dissenters, the minority, or those who have contrarian opinions.
We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak.  These latter groups have an right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind.  However, simply suppressing their speech does not eliminate hate, fear, and prejudice and the tools we use today to censor our enemies can another day be used against us.

Are You a Crackpot? Take the Quiz!

U.S. President John Adams once declared: “Facts are stubborn things; and whatever may be our
wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”  Similarly Thomas Henry Huxley, biologist and defender of Charles Darwin, stated that: “The great tragedy of Science — the slaying of a beautiful hypothesis by an ugly fact.”
At one time we declared as crackpots people who denied facts and reality.  But if only Adams and Huxley lived now in a world of alternative facts and reality it might be they who are declared crackpots for believing in truth and facts.  Yet for those of us who still naively and perhaps foolishly believe that facts exist, science produces knowledge, and that there are ways to ascertain truth, contemporary politics is challenging.  While crackpot claims and conspiracy theories are as old as human nature, crackpots seem everywhere, lurking behind every posting on the social media, stories in the news, and even press statements from the White House. Crackpotism does not discriminate, it seems to know no political, racial, ethnic, religious, or other bounds.
All of us want to think we are in the right and that others are wrong, but is it possible that you too are a crackpot?  Ths crackpot quiz or index measures the degree to which you are a rigorous tough-minded truth seeker all the way up to being a certified five-star crackpot, ready to run for political office, host a social media site, or leader a group of similarly-minded folks.  The quiz includes classic as well a contemporary questions.
Good luck!

1. The Earth is flat.  True or false.

2. Fluoridation of water was and is bad for you.  True or false.

3. God created the Earth on Sunday, October 23, 4004 BC at 9 a.m. True or false.

4. Vaccinations have been proven to cause autism. True or false.

5. Humans did not evolve from another species because evolution as a theory is wrong.  True or false.

6. Global warming is a hoax cooked up by those who hate coal and the fossil-fuel industry.  True or false.

7. You stocked up your basement with food and provisions in anticipation of Y2K. True or false.

8. Lee Harvey Oswald acted alone in Dallas. True or false.

9. Elvis is alive. True or false.

10. You think that any politician or political party that you disagree with is the Anti-Christ.  True or false.

11. You believe in the Anti-Christ.  True or false.

12. You are the Anti-Christ.  True or false.

13. You believe everything as true what you or your friends read or post on the social media.  True or false.

14. You repost things on the social media before either verifying the source and accuracy of the story, or without reading it first.    True or false.

15. Former President Barack Obama is not a U.S. citizen and his Hawaiian birth certificate is fabricated.  True or false.

16. The U.S. government is concealing information about a UFO crash landing of aliens at Area 51 in New Mexico.  True or false.

17. Neil Armstrong walked on the Moon. True or false.

18. The Holocaust occurred.  True or false.

19. Crrypto-Zoology is a legitimate science. True or false.

20. All terrorists are Muslims. True or false.

21. All Muslims are terrorists.  True or false.

22. The only good immigrants are your ancestors.  True or false.

23. Donald Trump won the presidency with one of the largest Electoral College victories in US history.  True or false.

24. Al Gore invented the Internet.

25. Life begins at:
a) Conception
b) Birth
c) When you get your driver’s license.
d) None of the above
e) All of the above

Answers (If you believe in facts and truth, if not go on to the score section).
1 F. 2 F. 3 F.4 F. 5 F. 6 F. 7 F. 8. T.  9. F. 10.  F. 11. F.
12.  F.  13. F. 14. F.  15. F. 16. F. 17. T.  18 T. 19 F. 20 F. 21. F
22. F.  23. F. 24. F. 25. E.

Score:
If you even took the test raises questions about whether you have insecurities about being a crackpot, or conversely, you actually believe in truth and facts.  Nonetheless:

If you got 23-25 correct you are a tough-minded truth seeker, not fit for politics or working as a pundit in the national media.

If you got 20-22 correct you generally believe in facts and truth but you could be convinced to buy a deed to the Brooklyn Bridge.

If you got 17-19 correct truth and facts are challenges for you and you could either become a university professor espousing epistemological relativism or addicted to Sunday morning talk shows or tele-evangelicals.

If you got 14-16 correct truth and facts are matters of opinion and you believe that black helicopters are ready to land at any minute.

If you got 13 or less correct truth and facts are only what you believe and congratulations, you are  certified five-star crackpot.

MAD to NUTS: US Nuclear Strategy, Donald Trump, and North Korea

Asking are we on the brink of war with North Korea is the question of the day.  For many the fear is that we have two leaders–Kim Jong-Un and Donald Trump–who are  hotheads, willing to engage in public threats and not private diplomacy.  They look like two drunks in a bar at 2:00 a.m., standing chest-to-chest with one another, neither really wants a fight but neither can back down, and the conditions are ripe for the confrontation to tip out of control.  Yet the conditions for why this confrontation are so unstable reside in the evolution of US nuclear strategy which has gone from MAD to NUTS, and because so many of the conditions that actually mad the Cold War stable are not present here.

The stability of US nuclear strategy during the Cold War was MAD–mutual assured destruction. In a bipolar world divided up between the USSR and the USA, part of what kept either country from using nuclear weapons and going to war was that both countries would face certain  destruction.  Neither country would be able to prevail over the other without also suffering significant damage.  Fear of mutual assured destruction prevented nuclear war.  But the stability of the Cold War also was premised on several other factors.

First, neither country seriously questioned the regime legitimacy of the other nor that it genuinely contested each other’s core spheres of influence.  Yes there were surrogate battles across the world such as the Congo or Vietnam, but both he USA and USSR generally acknowledged the security interests of one another and did not try to cross it.  The one major instance where that line was breached was the Cuban Missile Crisis, nearly resulting in a major war.

Second, in part as a result of the Cuban Missile Crisis, the USSR and USA developed communication strategies to stay in contact.  The Hot line in one famous example.  The point is that the two countries talked to one another, they had ways to try to resolve conflicts through diplomacy.  Without talking to one another, the USSR and USA would have been locked in the classic prisoners’ dilemma where acting alone there was incentive to confess (go to war) instead of remaining silent  (Maintaining peace).  While the Cold War era was scary, MAD worked and it prevented nuclear war.

Yet beginning in the 1980s and especially into the post-Cold War era US nuclear strategy went NUTS--Nuclear utilization target selection.    NUTS was about the idea that the US had the capabilities to engage in limited nuclear war.  It could do so because of the precision of our missiles, the overwhelming force the country had, or the defenses that it had to repel an enemy attack.  In addition, as a result of the demise of the USSR, the USA as the “winner” of the Cold War felt that it potentially could make limited nuclear war just another option among others in its military menu because it did not face the threats of mutually assured destruction.  In effect, the USA could win a  limited nuclear war.

What successfully prevented nuclear war during the Cold War is missing from the confrontation with North Korea.  MAD is missing.  The US will win a nuclear or any type of confrontation with North Korea, and that alone is destabilizing because it creates incentives to take a chance and escalate a shouting match into a military confrontation.  In the case of Trump, he may be convinced we win a limited nuclear battle if it escalates to that, or that because of his apparent indifference to our third parties, a battle that inflicts damages to Japan or South Korea is acceptable.  In effect, a false or genuine belief that the USA will not face assured destruction is destabilizing,  thus moving North Korea from MAD to NUTS.

In addition, it does not help that in the last few days Trump and his Secretary of Defense have threatened the legitimacy or existence of the North Korean regime.  This too is destabilizing, but it also fits into North Korea’s game plan.  That country is an oppressive totalitarian state whose legitimacy in the eyes of its people resides in constantly stirring up fears that its very existence is under threat from outside forces such as the USA.  This appeal to fear makes it possible to extract the sacrifices the regime gets from its people.  The more Trump responds to blusters with blusters, the more it both feeds into the ability of North Korea to maintain a tight gripe on its people but also  it fuels insecurities about regime existence that can escalate into conflict.

Finally, unlike during the Cold War era, there is little in terms of back door communication channels to prevent the prisoners’ dilemma miscalculation.   Many of the statements from North Korea are blusters directed more for internal than external purposes and historically have been dismissed as such.  Yet now Kim Jong-Un’s rhetoric may be backing him and Trump into corners they cannot escape.  Neither Trump not Kim may know how far to go before their words get away from them.  In an era now (as opposed to even a year or so ago) where the two nations must deal with one another as nuclear powers, it is simply not clear how past behavior controls or directs the current conflict.

Overall, Kim and Trump may be hotheads but they face a context far different from the Cold War or from what has defined North Korean-US relations for 70 years.  It is the uncertainty of this new context that is what makes this situation so dangerous.

Final note:  Take a look at this blog of mine from last year--a work of political fiction involving Trump, North Korea, and nuclear weapons.

The problems of the Trump presidency are real but distracting.    While the media is focused on the

Russian connection, criminal investigations, political impotence, White House staff changes, and insulting tweets, what is given short shrift are the fundamental problems with the US economy that gave rise to the Trump presidency, and how little is being done to address them.
The latest economic news superficially is great.  The unemployment rate has dropped to 4.3%, as 209,000 jobs were added in July.  This is the lowest unemployment rate in 16 years.   The economy has added job for 83 consecutive months–a record–and it now appears that all of the jobs lost during the 2008 economic crash have been recovered.  Conversely, the Dow Jones is over 22,000.  Democrats will credit Obama for the jobs report, Trump supporters will take credit for both the jobs and stocks.  But these rosy numbers do not tell the entire story.
The labor force participation rate is 62.9%.  This number measures what percentage of the eligible workforce is working.  This number remains low and has changed little in the last year.  Part-time employment has changed little over the last year, the number of discouraged workers (those who have stopped working for work) has changed little over the last year, the percentage of long-term unemployed (more than 27 weeks) has not changed much in the last year, and this group represents more than 25% of those unemployed.  In terms of wages, the average increase over the last month was 9 cents, and only a total of 2.5% over the last year.  Essentially, the Obama (-Trump) job recovery stalled at least a year ago.  It has never produced much in terms of significant wage growth, and it has not done much to bring back many new workers or the chronic unemployed back into the job market.
When it comes to the stock market, many experts argue that there is no good reason for the Dow to be at 22,000, at least this is the argument by Forbes, where the claim is that stocks are over-valued.  One traditional measure of stock value to determine if it is over-inflated is the price-earns ratio.  Historically it is about 15–a value less than that means a stock under 15 means it is under-valued, over that it is inflated.  In July the PE ratio for Wall Street was 20-way over value and comparable to the PE ratio in the late 1920s and 1990s before crashes occurred then.  It was also over 21 in January 2008, right before the current crash. Irrational exuberance might be the appropriate description here.
However, even if stocks are priced right they point to a continued economic trend in the US over the last 40 years–more and more income is being generated by stock and capital than by labor.  As the economist Thomas Piketty has pointed out, this is the recipe for why the gap between the rich and poor in the US has exploded over the last two decades.  Simply put, workers are making less money in terms of wages and the affluent more in terms of stock investments.
The recent unemployment figures coupled with the 22,000 Dow highlight the fundamental problems in the US economy that fueled the election of Trump.  He, along with Bernie Sanders, pointed to the failure of the Republicans and Democrats to do much to help the poor and working class over the last 40 years.  Good paying jobs have been lost, the gap between the rich and poor has increased, and Wall Street fiddles while Main Street burns.  Trump correctly pointed to the job anxiety of White working class America who have been left out of the economy (as have people of color but Trump never talked about that), but there is no indication in the recent unemployment reports or stock market gains to suggest that things have changed.
And there is no indication that either Trump, the Republicans in Congress, or the Democrats have viable ideas to address the problems of chronic unemployment and the rich-poor gap.   Efforts to repeal and replace Obamacare would have hurt working class America more, the proposed immigration reform does nothing to help American workers in terms of address wages or increase employment, and what little one hears about tax reform in terms of cuts to capital gains similarly will do little to address the wage and inequality gap.
The problems of the Trump presidency are many, but they distract from a deeper set of economic problems that have existed for two decades and which no one wants to fix.