Trump Thread

[a completely inoffensive name]

You can argue for a self-pardon power if you interpret text in isolation from the rest of the document and don't take history or legal meta-principles into account, which account nevertheless judges of all ideological stripes tend to take in analysis of issues of all sorts, so neglecting them in this type of case would be prima facie goal-oriented reasoning demanding a very good explanation. It doesn't say anywhere in the Constitution, for example, that preemptive pardons prior to the commission of a crime are forbidden, so under the positivistic approach Trump may permanently shield himself and his family/allies from federal criminal liability in a single proclamation. Such a result would allow Trump as a private citizen to defy the federal government or even personally execute the entire sitting Congress without fear of prosecution at any point in his life.

Ultimately there is that fig leaf permitting a far-right court (which we don't quite have yet) to endorse the irresponsible reading, but it would seriously damage the authority of the Court and may eventually grease comprehensive reform... For now let's keep in mind the "pragmatic" constraints on Trump that keep this line of thinking a rhetorical device, that self-pardon (as opposed to pardon by POTUS Pence, Acting President VP Pence, or some future POTUS), whether it's tested or not, guarantees eventual state-level prosecution and conviction barring irrevocable seizure of power. Moreover, there's a very strong case that a corrupt self-pardon (there is no other kind) would in itself be a criminal offense in violation of Obstruction of Justice statutes.

But I don't think there's reason to believe either that a faction of the Framers consciously intended this opening, or that they leaned toward "enlightened monarchy" as opposed to an executive capable of effectively balancing Congress. I understand that self-pardon was never explicitly discussed in documented form during the Constitutional Conventions, whereas proper checks on executive overreach were extensively discussed, so it's up to you to dig up any Framers who took the position that reproducing the privilege of a Charles I or Louis XIV was desirable in a time when even that of a George III was rejected. To reiterate, there is a difference between "energetic executive" and "royal prerogative", especially in the context of the null-executive Articles of Confederation.

I will see if I can type a bigger response before I hop on board a plane today. But I will just say that the approach I am taking in this convo is precisely the positivistic outcome you describe. If there is no other qualifier other than "except cases of impeachment" then that is what it says, and it is a mistake of the Constitutional Convention to not anticipate this. We patch it up with historical arguments on intent and practicality but the loophole is still there.

This is what I am getting at here Monty. The spirit of the law only matters when all parties respect the law. I have said this before and I guess it is not sticking. When you have an authoritarian moving to undermine institutional norms not written down, your only restrictions on him are what is explicitly written, everything else is a moving goalpost. Before criticizing all my other bullcrap I decided to type, tell me if I am wrong on this point.

As far as quotes, I will need to dig up Madison but I am pretty sure Hamilton advocated for a lifelong executive to replicate the privilages of the English system. Others maybe Morris wanted to scrap the impeachment clause and leave the president unaccountable to Congress, but that may have been for other reasons than inspiration from English law.