Socratic dialogue by an informed and educated citizen is key to a strong society. However, the algorithm of our capitalistic economy has manipulated most of us into either clickbait or passive mules of misinformation. It is no longer slick advertisers (think of the TV series Mad Men) controlling our actions; it is the more insidious mechanisms (think of Charles Chaplin's film Modern Times) that are producing overweight, undernourished, and docile receptors of junk science. I occasionally argue with a loyalist to the new regime, but I find myself walking away rather than engaging with "alternative facts." Sad. We are returning to Europe next week for a 6-month stay, hoping to find informed and reasonable friends like those we encountered last year in Ukraine, Poland, and Estonia; a blessing. My weekly Zoom with a lawyer in the Ministry of Defense (Kyiv) reminds me of respectful and compassionate bonds, a feature of America now lost to the stoked divisions of MAGAts. My communication with an abstract artist in Poland reminds me of intellectual curiosity. And our chats with Estonian academics and marketers remind me of the good in people. Last but not least, our talks with our "adopted" Ukrainian daughter who cares for her grandmother in Lviv despite the "angry neighbor killing us" remind me of how Americans used to be compassionate and protective. Slava Ukraine. Dean & Cindy
Dean, I'm so glad to get this update on you and Cindy, happy you're getting this opportunity to return to new friends and stomping grounds. All you say is true. It was my thinking for many years that during the Cold War, it was Europe, en masse, that had succumbed, remarkably, into a forgetful complacency in democratic, social welfare comfort, with the U.S. providing the very expensive, stalwart backbone in defense of democracy (and resources and markets, to be sure). Now there's a turning table, how much and how fully we'll likely learn over as soon as the coming year. Give me updates on your adventures whenever you can! I'l be very interested. Best to you both.
A question is how many. The limited reporting I've read on WH deliberations mentioned only a handful of high-profile names. I support pardoning anyone who has ever been publicly threatened by Trump, an aide, or an ally. Kash Patel's book Government Gangsters last year alone lists scores of names to be targeted.
Maybe I’m naive, but I have misgivings over this idea of preemptive pardons. These people have broken no laws. We know what the Republicans and MAGA will say: “Deep State cover-up!” “Proves their guilt!” But what about the rest of the country? Many will come to believe that neither side has a concern for the rule of law. The rule of law will come to be seen as a sham (more than it already is). And as HCR says, the rule of law is the whole game.
Further, although I haven’t read the entire hit list in Kash Patel’s book, Cheney, Kinzinger, Milley, Schiff, et al are the best positioned to withstand persecution, due to their public standing. Once pardoned, their incentive will be to remain silent and inactive to avoid further investigations and harassment.
And what happens to the mid-level bureaucrats at whom MAGA will inevitably direct its ire once these larger targets are off the table? They’ll not only be out of jobs, but likely harassed, bankrupted, even imprisoned, far from the public eye. (Some of my friends work in public health at the state and federal level, so I have a personal interest here.)
Let the stars of the resistance stand up to the promised persecution and show how absurd, baseless, and unlawful it will be. They’ll be the Vaclav Havels and Nelson Mandelas of our time.
But like I said above, maybe I’m just a naive idealist. Don’t bring a knife to a gunfight and all that.
Larry, first, thanks for your comment. I don't think you're naive at all, and you make a good case for an opposing view. I held that view for a long time. These decisions are classic judgment calls, like whether Biden should run for a second term. Easy to say now that was a mistake. But he beat Trump once, we were all hopeful that signaled a turn in the electorate, and he was the most experienced man ever to become president. Now, we can draw rosy pictures of open primaries, with Gavin Newsom or (pick your favorite) galvanizing the electorate over a longer term. But how easy it would have been to smear Newsom or whomever as a radical left Marxist, when Trumpists successfully did that to Biden, who'd been a middle of the road liberal his whole career. In the failure of one choice, it's always easy to champion the one not made as the clearly superior.
So in this case, you raise the issue that the writers I quote raise, of how much liberal democrats seeking to overcome and defeat an autocratic adversary cloaking itself in the apparel of democratic government should confine itself to normally upright practices. I think the record on that in the U.S. is quite clear: from the Mueller investigation to Garland not rushing to investigate Trump -- to avoid just the kind of perception of equivalence you concern yourself with here and that I do mention in the essay -- to countless other acts of normal politics and government, they have been an abject failure and have helped lead us to where we are now.
You raise an excellent point about future, unpardoned behavior being excuse for Trumpist persecution. But I think anyone who will not risk opposing Trump, pardoned or not, will not oppose Trump pardoned or not. But the pardons disable the head start and terrorizing effect of an immediate campaign of prosecutions. And they are entirely legal and certainly as legitimate as the draft evaders' pardons. This isn't campaigning anymore. This is a fight to preserve a democracy. We need to act tactically with a strategic vision.
Thank goodness you make this case so eloquently as we move directly toward autocracy--no matter what Biden did to protect his son after two rears of investigation that led nowhere and what he might have faced under Trump, considering Trump's total lack of any ethical base. It may not have been the smartest move, but do we really think Trump needed precedent to use pardons, let alone manipulation to do whatever serves his purposes toward martial law and a helluva a lot more?
Thank you, Mary, We -- including me -- need to hear clearly from those who perceive things as we do to feel that solidarity: "as we move directly toward autocracy," indeed. I fear increasingly that Americans are not adequately preparing themselves, even as even the public political culture deteriorates daily.
"It is illiberal because the governing party has attacked the critical institutions of liberal democracy, starting with the independence of the courts and their ability to exercise judicial oversight, not least of elections." (Anna Grzymala-Busse)
and
"Currently, agitation is building for, and the White House is considering, preemptive pardons for those that Trump and his nominees, aides, and allies have threatened with retribution."
Obviously if Trump and his allies follow through on their threats of retribution, his targets should be defended from this injustice. There's no room for witch hunts in a functioning democracy. Yet preemptive pardons, before we even know the precise nature of the crimes being charged, seems at odds with the concept of an independent judiciary. Those pardoned could abuse this privilege to commit crimes, knowing they won't face consequences, or otherwise escape justice for actual abuses of power (not that I'm aware of any specific recent crimes, but it would be naive to assume that democrats are immune to the pitfalls of power). I suppose the pardons could be framed narrowly to prevent such abuse...
I see how you addressed similar concerns in another comment, essentially saying that attempts by liberal democrats to overcome autocratic adversaries by confining themselves to normally upright practices have been an abject failure... Is this an endorsement for subverting democratic norms? Perhaps there's an alternative, a way to strengthen democratic institutions without resorting to autocratic tricks like preemptive pardons. I understand it's within the president's power to issue them, but I'm uncomfortable with setting this precedent... It wasn't uncontroversial when Ford did this for Nixon, and if Biden continues this pattern for democrats, what's to stop Trump from justifying preemptive pardons for everyone who serves his administration?
I reconcile them in two ways. First, more narrowly, the pardons would be a fully legal exercise of Biden's Constitutional power as president, and thus by no means "autocratic," so they would in no way stand in any kind of equivalence to an attack on the "institutions of liberal democracy," the "independence of the courts and their ability to exercise judicial oversight," or the electoral process. As incomparable conduct, no reconciliation is actually necessary.
I would point out too, by the way, that the Nixon pardon was also legal and peremptory, and not really controversial for its peremptory nature so much as the fact that people knew Nixon was guilty, and they wanted to see him held to account. Critics of his pardon, including me, would have been no happier seeing him pardoned after a conviction.
More broadly, I understand the spirit of your question to be directed toward any sort of equivalent behavior on the part of anti-Trumpists to the conduct of Trumpists. You fear that Trump critics acting in any way out of the normal and regular, procedurally good order of things, even if legal, might undermine governing legitimacy all around and justify Trump's own bad behavior.
But this issue is at the heart of my essay. The simple answer to your question, "what's to stop Trump from justifying preemptive pardons for everyone who serves his administration" is nothing -- nothing is to stop him as long as he is president and Donald Trump. I state here what we already know far too well, that Trump will do what he can and chooses to do regardless of any precedents. He blows precedents up. He may pander to a fair-minded concern like yours and say, "Biden did it too," but we know that it's nonsense pandering. Trump himself was already announcing intentions to pardon actual insurrectionists whom he personally incited long before others, not yet Biden, raised the issue of preemptively pardoning those Trump has threatened to prosecute for clearly illegitimate purposes. Again, there is no equivalence.
The worst people in the world will seek to justify themselves and undermine those who hold them to account by raising reasonable sounding but misleading arguments. Herman Goring argued in court in Nuremberg that he was being tried in court only because Germany had lost the war and the Allies had won. Well, that's true. And those tried were convicted by application of ex post facto laws. (The international community hadn't quite gotten around yet in the historical development of civilization to establishing universally accepted laws addressing crime against humanity, ethnic cleansing, and genocide.) Should the victors have let the Nazis, in that case, slide for their crimes -- as a matter of "fairness"?
It is part of the argument of my essay, highlighted by the video, that fairness as foolishness is how wars and democracies are lost.
If there's nothing to stop Trump from preemptively pardoning his own people, that's too much authority for him to hold, and this power should be stripped from the presidency. It's too autocratic, even if legal, with too much potential for abuse. Presidential immunity is likewise too broad a privilege, as Trump's critics have recently argued. We should be able to trust the courts to see through politically motivated charges, instead of providing more justification to concentrate more power in the presidency.
I don't disagree with you. The past decade has revealed many structural weaknesses in the American system. Though the U.S. inherited the tradition of the power from the English royal power, it's apparently common around the world. A critical element in our republican system is that we combine the head of state and leader of government role in one person, which increases both the power of and deference shown that single person, the president. That's the original source of what has emerged as our imperial presidency. You might find this interesting from the Washington Post as Trump's first term ended.
---------
President Trump spent a large share of his final full day in office considering and issuing pardons.
His employment of clemency powers alone does not set him apart from other world leaders. But his use of pardons to shield allies and political backers from legal trouble stands out on the world stage.
Past U.S. presidents have issued politically charged pardons, but Trump’s moves have been criticized by experts and historians as unprecedented in the scale of his focus on allies, family, friends and supporters. “No former president has ever pardoned such an array of figures who are his own cronies and have been involved in crimes related to the president,” said Allan Lichtman, a professor of history at American University.
Late Tuesday, Trump granted clemency to 143 people, including former White House strategist Stephen K. Bannon, the latest in a list of former advisers and associates to receive the same treatment, along with GOP megadonor Elliott Broidy.
Executive pardons are a common power across the globe. “Just about every country has a pardon power,” said Andrew Novak, professor in the department of criminology, law and society at George Mason University and author of “Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective.” “But actual use of it varies all over the place.”
Bravo, Jay!!!
Socratic dialogue by an informed and educated citizen is key to a strong society. However, the algorithm of our capitalistic economy has manipulated most of us into either clickbait or passive mules of misinformation. It is no longer slick advertisers (think of the TV series Mad Men) controlling our actions; it is the more insidious mechanisms (think of Charles Chaplin's film Modern Times) that are producing overweight, undernourished, and docile receptors of junk science. I occasionally argue with a loyalist to the new regime, but I find myself walking away rather than engaging with "alternative facts." Sad. We are returning to Europe next week for a 6-month stay, hoping to find informed and reasonable friends like those we encountered last year in Ukraine, Poland, and Estonia; a blessing. My weekly Zoom with a lawyer in the Ministry of Defense (Kyiv) reminds me of respectful and compassionate bonds, a feature of America now lost to the stoked divisions of MAGAts. My communication with an abstract artist in Poland reminds me of intellectual curiosity. And our chats with Estonian academics and marketers remind me of the good in people. Last but not least, our talks with our "adopted" Ukrainian daughter who cares for her grandmother in Lviv despite the "angry neighbor killing us" remind me of how Americans used to be compassionate and protective. Slava Ukraine. Dean & Cindy
Dean, I'm so glad to get this update on you and Cindy, happy you're getting this opportunity to return to new friends and stomping grounds. All you say is true. It was my thinking for many years that during the Cold War, it was Europe, en masse, that had succumbed, remarkably, into a forgetful complacency in democratic, social welfare comfort, with the U.S. providing the very expensive, stalwart backbone in defense of democracy (and resources and markets, to be sure). Now there's a turning table, how much and how fully we'll likely learn over as soon as the coming year. Give me updates on your adventures whenever you can! I'l be very interested. Best to you both.
Your essay and that clip are compelling. I agree with you that people who have been threatened, e.g., Liz Cheney, should be preemptively pardoned.
A question is how many. The limited reporting I've read on WH deliberations mentioned only a handful of high-profile names. I support pardoning anyone who has ever been publicly threatened by Trump, an aide, or an ally. Kash Patel's book Government Gangsters last year alone lists scores of names to be targeted.
Maybe I’m naive, but I have misgivings over this idea of preemptive pardons. These people have broken no laws. We know what the Republicans and MAGA will say: “Deep State cover-up!” “Proves their guilt!” But what about the rest of the country? Many will come to believe that neither side has a concern for the rule of law. The rule of law will come to be seen as a sham (more than it already is). And as HCR says, the rule of law is the whole game.
Further, although I haven’t read the entire hit list in Kash Patel’s book, Cheney, Kinzinger, Milley, Schiff, et al are the best positioned to withstand persecution, due to their public standing. Once pardoned, their incentive will be to remain silent and inactive to avoid further investigations and harassment.
And what happens to the mid-level bureaucrats at whom MAGA will inevitably direct its ire once these larger targets are off the table? They’ll not only be out of jobs, but likely harassed, bankrupted, even imprisoned, far from the public eye. (Some of my friends work in public health at the state and federal level, so I have a personal interest here.)
Let the stars of the resistance stand up to the promised persecution and show how absurd, baseless, and unlawful it will be. They’ll be the Vaclav Havels and Nelson Mandelas of our time.
But like I said above, maybe I’m just a naive idealist. Don’t bring a knife to a gunfight and all that.
Larry, first, thanks for your comment. I don't think you're naive at all, and you make a good case for an opposing view. I held that view for a long time. These decisions are classic judgment calls, like whether Biden should run for a second term. Easy to say now that was a mistake. But he beat Trump once, we were all hopeful that signaled a turn in the electorate, and he was the most experienced man ever to become president. Now, we can draw rosy pictures of open primaries, with Gavin Newsom or (pick your favorite) galvanizing the electorate over a longer term. But how easy it would have been to smear Newsom or whomever as a radical left Marxist, when Trumpists successfully did that to Biden, who'd been a middle of the road liberal his whole career. In the failure of one choice, it's always easy to champion the one not made as the clearly superior.
So in this case, you raise the issue that the writers I quote raise, of how much liberal democrats seeking to overcome and defeat an autocratic adversary cloaking itself in the apparel of democratic government should confine itself to normally upright practices. I think the record on that in the U.S. is quite clear: from the Mueller investigation to Garland not rushing to investigate Trump -- to avoid just the kind of perception of equivalence you concern yourself with here and that I do mention in the essay -- to countless other acts of normal politics and government, they have been an abject failure and have helped lead us to where we are now.
You raise an excellent point about future, unpardoned behavior being excuse for Trumpist persecution. But I think anyone who will not risk opposing Trump, pardoned or not, will not oppose Trump pardoned or not. But the pardons disable the head start and terrorizing effect of an immediate campaign of prosecutions. And they are entirely legal and certainly as legitimate as the draft evaders' pardons. This isn't campaigning anymore. This is a fight to preserve a democracy. We need to act tactically with a strategic vision.
Thank goodness you make this case so eloquently as we move directly toward autocracy--no matter what Biden did to protect his son after two rears of investigation that led nowhere and what he might have faced under Trump, considering Trump's total lack of any ethical base. It may not have been the smartest move, but do we really think Trump needed precedent to use pardons, let alone manipulation to do whatever serves his purposes toward martial law and a helluva a lot more?
Thank you, Mary, We -- including me -- need to hear clearly from those who perceive things as we do to feel that solidarity: "as we move directly toward autocracy," indeed. I fear increasingly that Americans are not adequately preparing themselves, even as even the public political culture deteriorates daily.
How do you reconcile these two concepts?
"It is illiberal because the governing party has attacked the critical institutions of liberal democracy, starting with the independence of the courts and their ability to exercise judicial oversight, not least of elections." (Anna Grzymala-Busse)
and
"Currently, agitation is building for, and the White House is considering, preemptive pardons for those that Trump and his nominees, aides, and allies have threatened with retribution."
Obviously if Trump and his allies follow through on their threats of retribution, his targets should be defended from this injustice. There's no room for witch hunts in a functioning democracy. Yet preemptive pardons, before we even know the precise nature of the crimes being charged, seems at odds with the concept of an independent judiciary. Those pardoned could abuse this privilege to commit crimes, knowing they won't face consequences, or otherwise escape justice for actual abuses of power (not that I'm aware of any specific recent crimes, but it would be naive to assume that democrats are immune to the pitfalls of power). I suppose the pardons could be framed narrowly to prevent such abuse...
I see how you addressed similar concerns in another comment, essentially saying that attempts by liberal democrats to overcome autocratic adversaries by confining themselves to normally upright practices have been an abject failure... Is this an endorsement for subverting democratic norms? Perhaps there's an alternative, a way to strengthen democratic institutions without resorting to autocratic tricks like preemptive pardons. I understand it's within the president's power to issue them, but I'm uncomfortable with setting this precedent... It wasn't uncontroversial when Ford did this for Nixon, and if Biden continues this pattern for democrats, what's to stop Trump from justifying preemptive pardons for everyone who serves his administration?
I reconcile them in two ways. First, more narrowly, the pardons would be a fully legal exercise of Biden's Constitutional power as president, and thus by no means "autocratic," so they would in no way stand in any kind of equivalence to an attack on the "institutions of liberal democracy," the "independence of the courts and their ability to exercise judicial oversight," or the electoral process. As incomparable conduct, no reconciliation is actually necessary.
I would point out too, by the way, that the Nixon pardon was also legal and peremptory, and not really controversial for its peremptory nature so much as the fact that people knew Nixon was guilty, and they wanted to see him held to account. Critics of his pardon, including me, would have been no happier seeing him pardoned after a conviction.
More broadly, I understand the spirit of your question to be directed toward any sort of equivalent behavior on the part of anti-Trumpists to the conduct of Trumpists. You fear that Trump critics acting in any way out of the normal and regular, procedurally good order of things, even if legal, might undermine governing legitimacy all around and justify Trump's own bad behavior.
But this issue is at the heart of my essay. The simple answer to your question, "what's to stop Trump from justifying preemptive pardons for everyone who serves his administration" is nothing -- nothing is to stop him as long as he is president and Donald Trump. I state here what we already know far too well, that Trump will do what he can and chooses to do regardless of any precedents. He blows precedents up. He may pander to a fair-minded concern like yours and say, "Biden did it too," but we know that it's nonsense pandering. Trump himself was already announcing intentions to pardon actual insurrectionists whom he personally incited long before others, not yet Biden, raised the issue of preemptively pardoning those Trump has threatened to prosecute for clearly illegitimate purposes. Again, there is no equivalence.
The worst people in the world will seek to justify themselves and undermine those who hold them to account by raising reasonable sounding but misleading arguments. Herman Goring argued in court in Nuremberg that he was being tried in court only because Germany had lost the war and the Allies had won. Well, that's true. And those tried were convicted by application of ex post facto laws. (The international community hadn't quite gotten around yet in the historical development of civilization to establishing universally accepted laws addressing crime against humanity, ethnic cleansing, and genocide.) Should the victors have let the Nazis, in that case, slide for their crimes -- as a matter of "fairness"?
It is part of the argument of my essay, highlighted by the video, that fairness as foolishness is how wars and democracies are lost.
If there's nothing to stop Trump from preemptively pardoning his own people, that's too much authority for him to hold, and this power should be stripped from the presidency. It's too autocratic, even if legal, with too much potential for abuse. Presidential immunity is likewise too broad a privilege, as Trump's critics have recently argued. We should be able to trust the courts to see through politically motivated charges, instead of providing more justification to concentrate more power in the presidency.
I don't disagree with you. The past decade has revealed many structural weaknesses in the American system. Though the U.S. inherited the tradition of the power from the English royal power, it's apparently common around the world. A critical element in our republican system is that we combine the head of state and leader of government role in one person, which increases both the power of and deference shown that single person, the president. That's the original source of what has emerged as our imperial presidency. You might find this interesting from the Washington Post as Trump's first term ended.
---------
President Trump spent a large share of his final full day in office considering and issuing pardons.
His employment of clemency powers alone does not set him apart from other world leaders. But his use of pardons to shield allies and political backers from legal trouble stands out on the world stage.
Past U.S. presidents have issued politically charged pardons, but Trump’s moves have been criticized by experts and historians as unprecedented in the scale of his focus on allies, family, friends and supporters. “No former president has ever pardoned such an array of figures who are his own cronies and have been involved in crimes related to the president,” said Allan Lichtman, a professor of history at American University.
Late Tuesday, Trump granted clemency to 143 people, including former White House strategist Stephen K. Bannon, the latest in a list of former advisers and associates to receive the same treatment, along with GOP megadonor Elliott Broidy.
Executive pardons are a common power across the globe. “Just about every country has a pardon power,” said Andrew Novak, professor in the department of criminology, law and society at George Mason University and author of “Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective.” “But actual use of it varies all over the place.”
https://www.washingtonpost.com/world/2021/01/19/trump-world-pardons-history/