Sunday, July 23, 2017

The law and a lawless President

Slate reports that it has increased its coverage of the issues around the Trump-Russia scandal. Jed Handelsman Shugerman brings up an important consideration on the Presidential pardon power in this situation, Trump Can’t Escape the States 07/21/2017:

The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).

Presidential pardons can’t apply to state prosecutions. That means state attorneys general, especially New York’s Eric Schneiderman, Washington, D.C.’s Karl Racine, and Delaware’s Matthew Denn should think about canceling their summer vacation plans. (Yes, Delaware. Go Google “quo warranto,” see this old post, or better yet continue reading.) And maybe they should open up some office space for Mueller and his A-Team when he inevitably gets fired for getting closer and closer to hard evidence of serious crimes.

The president cannot pardon people for state crimes. Even if Trump pardons, say, his son-in-law Jared Kushner, a state prosecutor can bring charges under state law anytime. Similarly, Trump can be prosecuted under state law. President Richard Nixon’s attorney general concluded in 1974 that a sitting president can’t be indicted, but there is no constitutional text or precedent for such a conclusion - and it was obviously an interpretation that benefited Nixon. I think this is an open question. [my emphasis]
This also means, though, that if Trump pardons people, if they still face state charges, they would be able to take the Fifth before Congressional or other federal investigators.

Dahlia Lithwick, whose column is always worth reading, writes about how we need to remember that Lawyers Aren’t Wizards 07/21/2017. The political remedy (political in the broad sense) of impeachment is a ccritical backstop if the President successfully evades normal legal processes.

Please don’t get me wrong. I continue to believe the law and lawyers will eventually save us all, or at least die trying. But the real answer to the myriad legal and constitutional questions Trump raises with each exhale is, of course, that the legalities don’t matter because he doesn’t care, and he either fires, berates, or isolates the lawyers around him who do care. This is asymmetrical warfare insofar as the people who continue to think in terms of the rule of law mistakenly believe that there might be legal solutions.

The Framers erected an edifice of law intended to constrain power, and the president believes that framework is made of spun sugar and cobwebs. The United States is a nation built upon, as John Adams told us, “a government of laws and not of men.” The Trump administration adheres to no law, and whatever men or women keep faith with the law rather than him are discredited as biased against the president. This only goes one way [from Trump's perspective]: Norms are for losers, and laws are for poor people. And now Trump has his dream team of mob lawyers and mad dogs hard at work proving that the only lawyer without a disabling conflict of interest is the one pledging fealty to him. [my emphasis in bold]
Pointing to the Republicans' painfully obvious resistance so far to opposing Trump in the Russia scandal, which will surely soon turn into a tangle of related business scandals, she comes up with a beautifully concise statement about how an abstract ideological belief in the rule of law can facilitate people who intend to undermine it:

This is a problem that requires our focused long-term attention to money in politics, partisan gerrymandering, and voter suppression. And this is, in the end, a problem only because Americans — myself included — are prey to a form of magical thinking about law and the Constitution. The Framers believed the law would fix it, and that makes it easy to hope that the lawyers will fix it. The lawyers became the wizards, and the Constitution became a book of spells, and the best thing a citizen could hope to do is make a donation to a group of lawyers who could perform the right incantations, fondle the correct talisman, and save democracy. [my emphasis]

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