Friday, June 14, 2019

Advice From Alexander Hamilton: The Next Democratic President Might Need to Pardon Trump

by Michael C. Dorf

There is no real equivalence between Donald Trump's gleeful and repeated encouragement of his supporters chanting "lock her up" in reference to Hillary Clinton's use of a private email server and recent statements about Trump by House Speaker Nancy Pelosi (“I don’t want to see him impeached. I want to see him in prison") and by Senator Kamala Harris (in a Harris administration, DOJ "would have no choice" but to prosecute Trump for obstruction). Pelosi made her remark in private and as a way to tamp down impeachment, while Harris made her statement in response to a question. Moreover, as the Mueller report documents, there is substantial evidence that Trump committed crimes that would subject him to indictment and conviction were it not for the DOJ policy against indicting a sitting president. By contrast, Clinton's email server use was reckless but not the sort of act that typically warrants prosecution.

Nonetheless, in a Lawfare column on Wednesday, Ben Wittes argued that Democrats should stop talking about prosecuting Trump, because (quoting Paul Rosenzweig) "you don’t protect norms by violating norms." Although I disagree with Wittes's implication (which may not have been intended) of equivalence, I agree with his advice to Democrats to stop talking about prosecuting Trump, because doing so very easily lends itself to the appearance that they share Trump's willingness to convert the US into the sort of country in which new governments routinely prosecute their predecessors for real and imagined crimes--thus undercutting the incentive of leaders who are defeated at the polls to relinquish power. It's true that the Trump-supporting critics of the Pelosi and Harris statements are shameless hypocrites, but any advice for US politicians operating in the real world must take account of the fact that shameless hypocrites litter the media landscape.

I also agree with Wittes on another point: that the NPR reporter's question that prompted Senator Harris to say that the DOJ would need to prosecute Trump contained embedded within it an implicit question about whether the next president ought to pardon Trump. Here I want to channel Alexander Hamilton, whose analysis in Federalist 74 may provide some useful context.

Among the reasons Wittes gives for why Democrats should not currently commit to (or against) prosecuting or pardoning Trump is the fact that the prosecution decision might look different in January 2021 from how it appears today. He highlights a crucial factor:
The matter will look very different if [Trump] loses in a landslide and leaves office graciously (for him) than it will if he loses narrowly, refuses to accept the results of the election, and resists leaving office. One important prudential factor in the question of his prosecution, after all, might reasonably be the extent to which criminal process against the former president would serve to protect against an ongoing threat to democracy—rather than, say, merely to serve as retroactive accountability for past conduct.
I read Wittes to be saying that prosecution would be more appropriate if Trump refuses to accept the results of the election than if he follows the precedent of every prior losing president (with the appropriate caveats about the elections of 1800, 1876, and 2000) by conceding graciously. Assuming the issue arises after Trump has left office (even if only after a struggle), that may be right. However, we can imagine a scenario in which Trump's refusal to accept a loss at the polls cuts the other way: a Democratic President-elect might want to promise a hitherto-recalcitrant Trump a pardon in exchange for Trump's agreement to encourage his supporters to accept the result.

Consider Hamilton's observation. In Federalist 74, he responds to an objection to the Constitution's vesting of the pardon power in a single individual. He focuses, as did the critics to whom he responds, on pardons for treason:
when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the [President] is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity.
Unfortunately, it is possible to envision a scenario in which Hamilton's proposal would be literally applicable. Suppose that the 2020 presidential election is close enough for Trump and his allies to claim that some combination of imagined voter fraud and other irregularities in one or more swing states mean that he, rather than the Democratic candidate, is the rightful victor. Suppose further that the courts reject his challenges but not without dissents from one or more judges and justices. Trump supporters, spurred on by the right-wing media and Trump himself, resist, initially peacefully but as time goes by with increasing violence. Prior to Inauguration Day 2021, the Democratic President-elect could promise  pardons to Trump and perhaps to some of his supporters as well, but such a promise is not legally enforceable, and thus it is easy to imagine that it would not satisfy Trump. To ensure domestic tranquility, immediately following his or her inauguration, the new President could strike a deal with Trump for one or more pardons in exchange for his calling off the resistance.

Would that be corrupt? Sure, but if Hamilton is our guide, this is exactly the sort of corruption that the pardon power was intended to embody. We are accustomed to thinking of pardons as principally serving a mercy function to mitigate harsh justice. But as the experience in countries transitioning to democracy reveals, some sort of amnesty for leaders and members of the ancien regime can also serve to promote democracy.

Would the use of the pardon power in this way undercut accountability? Absolutely. Promising Trump a pardon in exchange for calling off the insurrection would be the lesser of two evils and would, in a sense, be acceding to a kind of political extortion. But it would be better than civil war.

Finally, I note that I was reluctant even to broach this subject, for fear of giving people ideas that then create two possible incentives. First, if Trump really does fear prosecution and thinks that his best shot at a pardon is to "buy" it using the threat or reality of insurrection by his supporters, he could be led to encourage such insurrection. Second, if Trump thinks that a future Democratic president will pardon him if push comes to shove, he will feel free to break the law.

Those are real risks, but I judge them to pose less total danger than: (a) the risk of civil war; and (b) the risk that loose talk from Democrats about prosecuting Trump is already incentivizing Trump to refuse to acknowledge defeat in 2020 should it come to that. As for the worry that the prospect of a pardon will lead Trump to think he can break the law with impunity: (a) he could not count on a pardon from the next president until he actually had it in hand; and (b) he already seems to think he can break the law with impunity.

15 comments:

Steve Davis said...

I want to take issue with the distinction you make between Trump's alleged crime and Clinton's alleged crime. I agree that under existing precedent and DOJ practice what Clinton did would not typically "warrant prosecution." A fair argument can be made, however, that what Clinton did was a crime within the wording of the Espionage Act. Isn't the same true of Trump? A fair argument can be made that he committed obstruction. But is there precedent for actual prosecution or conviction of a public official for obstruction where (1) there was no underlying crime, and (2) there were no acts of bribery, destruction of evidence, or perjury, or the like, and (3) the obstruction, if it was that, was merely attempted obstruction -- the investigation was no in any way impeded? I've read much of the Mueller report and some of the cited legal authority and I don't see a clear precedent for prosecuting a public official for what Trump did. So it's not as clear to me that these cases are so different. And in the absence of a really clear case for impeachment or prosecution, it seems to me the better course of action is not to impeach or prosecute. Am I wrong about the legal precedent?

Shag from Brookline said...

I'm having difficulty with Mike's (a) "the risk of civil war ..." Maybe civil unrest, but a civil war? The role of the federal military? The role of military of the states, or some of them? Self-declared militias? 2nd A absolutists? These might make America's national security vulnerable to foreign adversaries. Would the American public not be aware of the impacts of such risks on our national security?

Regarding Mike's addressing the worry in his closing sentence, it should be kept in mind that Trump has not eliminated the power of self-pardon. Trump has made it clearer with his recent statements on taking dirt on political opponents from foreign governments of his doing anything to make a buck, protect himself.

In thinking back on Ford's pardoning of Nixon, I recall that over time Nixon took steps to attempt to rehabilitate his political career, not to run for office, but perhaps in an attempt to reshape. history. The public's reaction to that pardon may likely have cost Ford being elected in 1976. Nixon's David Frost interviews exposed Nixon for the political animal that he was. But Trump has no shame at all. At least Nixon had faced the voters over the years being elected to the House, then to the Senate, then as Ike's VP, and then the presidency in 1968 and re-elected in a landslide in 1972 before his Watergate scandal became public. Contrast this with Trump's life history pre-2016 and what he has displayed in his presidency. Nixon recognized, but didn't accept, shame, whereas Trump has no shame. If Trump loses in 2020, he would remain eligible for 2024. Trump would most likely pursue his brand even if he were pardoned. Such a pardon might bolster Trump's supporters to thwart a Democrat's presidency in hopes of 2024 for Trump ... or perhaps Ivanka.

As for Hamilton's views construed by Mike, a pardoning of Trump by a Democrat president might serve as a sequel to Hamilton, the Musical, probably funded by the Koch Bros.

Shag from Brookline said...

Trump has demonstrated that he is a national security threat. Contrast this with Nixon during his Watergate ordeal, with Vietnam continuing on his watch. Was Nixon a national security threat with his his C-I-C nuclear powers with his long political experience? Trump's experience learned at the knee of Roy Cohn was to fight back, with threats by any means.

If Trump were to lose in 2020, he could self-pardon or resign and get a pardon from Pence before January 20, 2021. While the legality of such a self-pardon might be questioned, maybe no one with standing would challenge. Such litigation might run on for years, with Trump thinking it promotes his brand.

Joe said...

I think that Democrats should start an impeachment inquiry and leave open question of prosecution until later in the day. This is in part influenced by the pragmatic concerns cited in the piece, including hypocritical likely responses from Republicans and "both sides do it" talk from the media.

I think, if pressed, Kamala Harris would say that surely they would have to investigate Trump and determine, given the state of affairs in 2021, what prosecution decision is justified. Personally, I think impeachment and dealing with his financial crimes as warranted is more important. Ditto anyone else.

The first comment touches upon such concerns since we will have a couple more years of talk about Hillary Clinton. I do think there is a "really clear case for impeachment," in part because there are a range of grounds, not just related to what is in the Mueller Report. Part of this would be interference with Congress, which would not be the sort of thing likely prosecuted anyhow.

The Mueller Report said that Trump was "mostly" not successful, but repeatedly cited cases where the investigation was obstructed by various people. Successful prosecutions were blocked in part for this very reason. It is rather unlikely that around ten cases of obstruction by Trump, the head of the executive department, did not obstruct the investigation as a whole. As to no other crime occurring, that too is unclear; Rick Hasen, e.g., has discussed how the report is too conservative in concluding what is necessary to bring charges.

Finally, I don't know the relevance of a "public official" being involved here, noting numerous public officials have also been prosecuted for corruption on a variety of grounds, including interference with an investigation in some fashion. The letter signed by former federal prosecutors did not find #2 convincing.

Also, it is unclear "the like" etc. did not occur. Trump, for instance, at the very least tried to guide the production of false evidence. Attempted destruction of evidence and the like is not trivial and would be surprised it was not subject to prosecution. Pardons were floated with the implication of a quid pro quo. I have also seen references to Trump lying in a way that obstructed. The fact it wasn't directly "perjury" does not seem to be enough to stop this "clear" case.

But, pragmatically, I do think people will bend over backwards to try to find a reason not to prosecute. It realistically factors into the equation.

Joe said...

One reason by prosecution is being discussed is because there is a broad agreement that a sitting president (or whatever Trump is) can be prosecuted or at least charges can be brought. Josh Marshall at Talking Points Memo cites a recent poll here that cites a clear majority of the population agreeing with this at least on principle.

This makes it understandable that those running for president, particularly those who in a big field wish to appeal to the base, are talking about the subject. But, it isn't just what can be cynically (or to be more fair, understandably) said to be a political move. It is simply a reflection of a strong sentiment out there.

This doesn't change the best path here long term, since the sentiments here are likely in flux and somewhat flexible. But, it is something to factor in.

Michael C. Dorf said...

Just w/r/t Steve's initial question, here's a WaPo op-ed by Daniel Hemel on the fairly routine prosecution for obstruction w/o proof of an underlying crime: https://www.washingtonpost.com/outlook/2019/03/26/barr-is-wrong-obstruction-justice-doesnt-require-another-underlying-crime/
And the obstruction need not succeed for it to count (although Trump's obstruction arguably did succeed in the sense that it played a role in the failure to find sufficient evidence of conspiracy).

Todd_NYC said...

Civil war? Really? You worry the union is so fragile that the only way to preserve it is through an extra-judicial, extra-legislative ad-hoc pardon?

Maybe the Obama administration was thinking along these lines in 2009. Is that why Obama didn't prosecute the members of the Bush administration who should have been prosecuted for war crimes?

I don't know. Maybe the country would be in a better place now if Obama had prosecuted several of the Bush actors. It might have caused an uproar, but may have also sent a message to the right-wing that they can't do whatever they want and get away with it.

Steve Davis said...

I'm still looking for an answer to my question, though. I understand that obstruction may be prosecuted even if there is no underlying crime proved. E.g., Martha Stewart. But Stewart lied to investigators. Trump did not lie to an investigator, did not commit perjury, did not destroy evidence, did not bribe anyone. I'm not sure which of his alleged obstructive acts prevented Mueller from alleging conspiracy. I don't recall that from the report. And, again, the question is whether that act, whatever it is, is the kind that typically supports an obstruction prosecution.

The question is whether there is legal precedent for prosecuting obstruction against a public official who has not engaged in overt acts of the type that usually are the predicate for an obstruction prosecution, especially where there is no underlying crime and where the investigation continued despite the public official's attempts. I haven't seen such a precedent. If there is none, then this would be an unprecedented prosecution/impeachment, in the same way that prosecuting Hillary Clinton would have been unprecedented (despite a reasonable argument based on the text of the applicable statute). I tend to think that such a prosecution/impeachment against Trump (if I'm correct about the law -- I don't know that I am) would be imprudent and unwise for the same reason a prosecution against Clinton would have been imprudent and unwise.

Michael C. Dorf said...

According to over a thousand former prosecutors, although of course Trump, like any other defendant, would be entitled to a factual defense, the conduct described in the Mueller "report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice." The clearest examples are the attempt to create false evidence and to pressure witnesses to lie. The letters' signers "emphasize that these are not matters of close professional judgment."

https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1

Steve Davis said...

Re the letter by prosecutors cited by Mike:
I've read that letter. Conspicuously, it cites no legal precedent for any of its positions. No statutes, no cases. I don't dispute that a plausible argument can be made that Trump violated the language of applicable obstruction of justice statutes, but in the absence of any controlling or any even persuasive case authority I don't believe it's at all fair to say "these are not matters of professional judgment." If no prosecutor ever has successfully prosecuted a case with similar facts under the applicable statutes, then it seems fair to say at the least that some amount of professional judgment is involved here.

There were prosecutors and legal experts who believed that Hillary Clinton broke the law, but there was an absence of case authority or prosecution history that supported prosecution. My impression is that exactly the same circumstance applies here. I could be wrong, not being an expert in this area, but I've seen nothing to date to suggest I'm wrong.

The fact remains: it would be an unprecedented impeachment/prosecution under applicable law, and not just because Trump is President but because no public official ever has been prosecuted or convicted for alleged crimes like these.

Joe said...

Trump did not lie to an investigator, did not commit perjury, did not destroy evidence, did not bribe anyone. I'm not sure which of his alleged obstructive acts prevented Mueller from alleging conspiracy. I don't recall that from the report.

Trump repeatedly tried (see in part the cited statement by former federal prosecutors] to have people create false evidence, tamper or intimidate witnesses, floated pardons (a form of bribe if we look at why) and again even the report (which we need not merely rely on) says (to quote) "efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests." "Mostly."

The op-ed cited earlier provides examples where there is no underlining crime in conspiracy counts and there is not a need for even more caveats. Case law is cited that doesn't require lying to investigators or the like. But, e.g., why directly lying to investigators as compared to multiple cases of trying (and only "mostly" not succeeding) to do the functional equivalent doesn't count is unclear.

Joe said...

"Conspicuously, it cites no legal precedent for any of its positions."

The around thousand of former prosecutors that signed on did so not because there was some "plausible" reason, but because they thought there was a clear case. Case law, not refuted, was cited in the op-ed. The statement is not meant to be a brief.

But, when around a thousand prosecutors from Republican and Democratic administrations are willing to sign on, without more, I would think it is more than "plausible" a strong case is to be made. The op-ed cited case law. I do think (wasn't there testimony in fact to Congress recently?) briefing of some sort can be found.

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JS said...

Not just no, but HELL NO!

Steve Davis said...

In response to Joe's two posts responding to mine:

1. Re case law: My point stands. From what I've seen there's no case law on point for a prosecution or conviction on these facts, or similar facts. I don't deny one can plausibly argue that the acts are criminal and one can extrapolate criminal liability, with a little effort, from the case law. But it's still not on point. The combination of ways in which this obstruction case is lacking elements common to most obstruction cases is, in my view, troubling, and cautions against prosecution, just as -- and I'm going to keep saying this because I think it's an apt comparison though no Democrat wants to acknowledge it -- case law and prosecution history cautioned against prosecuting Hillary Clinton despite a more than plausible textual reading that she committed a crime.

2. The letter: 1000 signatures are not a survey, and not, in my view, at all persuasive. The DOJ hires over 9500 lawyers, and there must be at least 20,000 former lawyer employees. We have no idea how many prosecutors looked at the letter and chose not to sign or looked at it and decided that in their view Trump did not commit a crime. Trump has done an extraordinary amount to antagonize and vilify his own Department of Justice and it would not surprise me if there is a great deal of anti-Trump feeling in its ranks and former employees. The likelihood of bias among prosecutors, IMO, undermines the weight of this letter, just as it, IMO, undermines the weight of the seemingly near unanimous opinion among registered Democrats that Trump should be impeached. Numbers don't count for much in a matter like this. Everybody is biased. That's why we need to look scrupulously to case history and prosecution history and not just look to our own intuitive judgments about what the obstruction statute seems obviously to mean. Such judgments always are biased.