Impeachment Trumps Pardons

After the assault on the Capitol building which was incited by President Trump’s rhetoric there are people in both parties calling either for him to be removed from office by the 25th Amendment or to be impeached a second time. So far it would appear that while a few members of the president’s cabinet have floated the idea of his being removed using the 25th Amendment there seems to be little chance that Vice President Mike Pence would go along. But even if you could get a majority of the cabinet and the VP to agree that the president was unable to discharge the powers and duties of his office the process doesn’t end there. The declaration of the president’s inability would have to be submitted to the President pro tem of the Senate, but according to the amendment the president could then submit his own declaration to the Senate that he is, in fact, that no such disability exists. At that time the VP and the cabinet would have to state again that the president is unable to do his job, at which time it would fall to the full Congress to vote on whether he was not up to the job; this would require a two-thirds majority of both houses to make it stick. The chances of this happening are very slim.

The chances of the impeachment process being able to remove Trump from office areWhi not really any better. With a Democratic majority in the House of Representatives it should be no problem for articles of impeachment to be approved, but conviction in the Senate is almost certainly doomed to failure, since it would require a two thirds majority vote to actually remove the president from office.

While neither of the available options have much of a chance to remove the president from office, there is an advantage of the impeachment process that would help keep Trump from avoiding being held accountable for his actions once he leaves office. Many people have been worried that Trump would either try to pardon himself or resign from office for the purpose of allowing Mike Pence to pardon him. Luckily for us, Article 2 of the Constitution states that the president’s pardon power does not apply to cases of impeachment. This would mean that any charges of wrongdoing contained in the Articles of Impeachment could not be made to disappear by a presidential pardon. Someone might say that if there isn’t a conviction in the Senate then the pardon would be valid, but nowhere does the Constitution state that the Senate has any role; impeachment is separate from trial and conviction by the Senate, so therefore impeachment is all that’s necessary to invalidate any attempt to pardon someone for acts for which he was impeached. This means that the charges from the first impeachment as well as the additional charges related to the insurrection that a second impeachment might include would not be pardonable. For this reason impeachment is certainly the best option available here.


This is Why Donald Trump Thought He Could Game the Courts

Today is the 20th anniversary of the Supreme Court’s Bush v. Gore decision, which stopped a statewide recount of 61,000 ballots that tabulation machines had missed. The recount had been ordered by the Florida Supreme Courton December 8, 2000 and since the current tabulation had given George W. Bush the majority of votes his campaign immediately asked the US Supreme Court to stay the lower court’s order and stop the recount. On December 9 the Court’s 5 conservative justices voted to grant the stay for Bush, claiming that the recount could cause “irreparable harm” by casting a “needless and unjustified cloud” over Bush’s legitimacy. Justice John Paul Stephens dissented, making the common-sense statement that “counting every  legally cast vote cannot constitute irreparable harm”. Oral arguments were scheduled for December 11.

There were two questions the Justices considered in this case. The first was whether there was an Equal Protection Clause violation due to the fact that different counties used differing standards in determining what constituted a valid vote. The Court ruled on December 12 by a 7-2 margin that there was such a violation; they also decided that the state’s Supreme Court ordered recount only mandated a count of undervotes, and not overvotes as well. At this point any such violations could have been resolved by the Court mandating that all undervotes and overvotes be counted.

The killing stroke for the Gore campaign in was that the five conservative Justices ruled that December 12, the day of their decision, was the deadline Florida law had mandated for recounts, so that its certification could meet the “safe harbor” deadline whereby their results could not be disputed by Congress and that no recounts could be conducted past that date.

Looking back it’s hard not to conclude that the whole idea behind the conservative Justice’s decision to hear this case was based on the knowledge that if a stay were issued there would be no way that the recounts could be finished before the safe harbor deadline, thereby ensuring before they ever heard any arguments that Gore’s case would be doomed. Had the Court not intervened the recount could have been completed on time, and independent analyses have determined that if the statewide recount had been conducted Gore would have prevailed, adding Florida’s 25 electoral votes to the 267 he had already garnered, giving him 292 votes in total, 22 votes more than the 270 needed to prevail.

To my mind this was the most blatantly political Supreme Court decision in our nation’s history. It’s a safe bet that the conservative majority’s chicanery in this case is what convinced Donald Trump he could prevail in his efforts to have the results of the election overturned. Sadly, I believe the only reason he didn’t succeed in at least having a case heard was because the results didn’t hinge on just one state’s result; instead it would have required overturning the results of at least four states’ results, and not enough conservatives believed they could credibly make that ruling.

It’s Time to Fix Gerrymandering for Good

This month the Census Bureau will deliver its apportionment counts to the president, and this information will be used to decide how many congressional districts will be apportioned to each state. Since 1929 we have had a static number of 435 districts, so it is likely that some states will gain at least one district and some will lose. It will then fall to the states to draw their new district boundaries. Ideally the districts should be drawn in such a way that they are compact and uniform to as great an extent as possible, to allow for the most equitable representation for all voters. Sadly, a number of state legislatures will in all likelihood follow their previous trend of drawing their districts to gain an advantage in Congressional representation by the party holding that state’s legislative majority. They will draw boundary lines that trace odd shapes all designed to concentrate their opposing party’s voters into as few districts as possible so that the rest would contain majorities for their party. This practice effectively disenfranchises tens of millions of Americans across the nation. This is a practice that has gone on since the country began, but in the last thirty years or so it’s increased to a ridiculous level, affecting at least 59 districts and over 13 million voters.

Until recently there have been three avenues available to address partisan gerrymandering, either at the state level, through the court system or Congressional action. But last year’s Supreme Court decision in Rucho v. Common Cause stated that the problem of gerrymandering is a nonjusticiable political issue which cannot be addressed through the courts. That leaves only the individual states or Congress to address  the problem.

There are a number of states who have taken action to address partisan gerrymandering. In 2018 the Pennsylvania Supreme Court overturned a districting map drawn by the Republican legislature and replaced it with one drawn by an independent expert. Five states have passed ballot initiatives that support independent redistricting, usually by creating a nonpartisan commission tasked with drawing district boundaries, while other states are considering some version of that. If every state were to adopt such commissions it could fix the problem entirely; but the likelihood of that happening and the time it would take for that to happen would mean that for the next decade we would still experience significant disenfranchisement of millions of voters due to gerrymandering.

There is still a role Congress can play here. They could pass a law requiring that district boundaries be drawn in such a way as to prevent partisan gerrymandering. There is a historical precedent here, as the Apportionment Act of 1911 required that individual districts within a state be “contiguous, compact and containing as nearly as practicable an equal number of inhabitants”.  The problem here is that Democrats on average seem to care more about fixing gerrymandering than Republicans probably due to the fact that most models of a non-gerrymandered Congress would likely result in a significant Democratic majority in the House of Representatives. And if the runoff elections in Georgia scheduled for next month result in even one of the Republican incumbents keeping there seat we would have a Republican majority in the Senate and a certain deadlock on any proposed fix to gerrymandering.

There is still one option left, however. Article One, Section 5 of the Constitution states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” meaning that the House and Senate have the enumerated power to ensure the integrity and impartiality of the elections for their respective members. The plain language meaning of this is that the House of Representatives has the ability to dictate to the states many things related to the conduct of the Congressional elections in those states. So, if the Democratic majority in the House of Representatives agreed, they would not need the consent of the Senate to require the same districting standards as were in place from 1911-1929 under the aforementioned Apportionment Act. If they were to pass a resolution in the House saying that districts should be contiguous, compact and containing an equal number of inhabitants any state that did not comply could have all of the Representatives-elect excluded from being seated and requiring them to redraw their districts and have new elections. Exclusion of Representatives-elect would require a simple majority vote for the motion to carry. There would need to be a separate majority vote for the exclusion of each prospective member.

One of the reasons this has never been done is that any such effort would be met with vigorous court challenges, likely asserting the rights of the people to choose their own representatives; in such a conflict the House would be able to assert its right to make sure those same people were not being disenfranchised by an improper gerrymander. But that possibility has now been excluded by the Supreme Court’s Rucho decision. In other words, if the House chooses to go this route, there is no one else who has the power to stop them. If they can muster the requisite political will next year’s House of Representatives can fix the problem of partisan gerrymandering all by themselves.

Implied Consent in Judicial Nominations

When Donald Trump took office there were 105 vacancies in the federal judiciary due to the Republican majority in the Senate having failed to consider Barack Obama’s nominations to those posts. That’s in addition to their lack of action on the Supreme Court vacancy after the death of Justice Antonin Scalia. If the Senate runoff elections in Georgia scheduled for next month result in the Republican incumbents keeping their seats Joe Biden can very likely expect more of the same from Senate Majority Leader Mitch McConnell. Now, this kind of obstruction is not just a Republican thing, Democrats have done the same to Republican presidents when they’ve held the Senate; that doesn’t make it right, and regardless of who holds the Senate come January 20, Biden should take steps to keep this from happening again to any president.

Judicial vacancies caused by Senate inaction creates a number of burdens on the nation’s justice system. Fewer judges means much longer delays in disposition of cases, creating greater costs in incarcerating suspects who spend a greater time waiting for their day in court. A reduction in the number of judges means a heavier case load for the ones remaining, causing them to spend less time on individual cases and leading to judicial burnout. These are just two examples of a number of problems created by playing politics with judicial appointments.

In the past the presidential response to such inaction by the Senate is to just “grin and bear it” since the Constitution doesn’t outline a specific process for confirmation of judges, along with the concern that taking action against it might be viewed as “playing politics”. But there is no excuse for this kind of behavior, regardless of which party is engaging in it, and there is something Joe Biden can do once he takes office.

The Constitution provides for consequences when the president fails to take action on a bill submitted to him after having passed both houses of Congress. If it remains on his desk without a signature or a veto more than ten days it becomes a law, just as if he had actually signed it. The only exception to this is if Congress adjourns before the end of the ten day period, in which case the bill does not become law.

In the case of a judicial vacancy the president sends a letter to the Senate specifying the person he is nominating to fill it. Using the legislative process as a precedent he could include in that letter his intention to consider the Senate’s consent to be implied if they take no action on his nomination within a reasonable time frame, say ninety days; he could say that at that time his nominee’s installation would proceed with a swearing in ceremony. Upon receipt of such a letter the Senate would have the choice to either proceed with the normal hearing and confirmation vote, challenge his letter in the Supreme Court, or take no action, thereby allowing the implied consent to stand.

If the Senate were to challenge the letter outlining the implied consent doctrine in court, I would imagine the first question the Justices would ask is why they’re not proceeding with the normal confirmation process instead of challenging the policy. It’s very likely that, as this would be a completely political issue, the Court would rule that they have no jurisdiction to intervene in the dispute. But the fact that this would be entirely new legal territory and the outcome so unknowable it might not come to a court battle.

If the Senate winds up actually being in Democratic hands when Biden is sworn in they could help him in cementing this policy by amending the rules for confirmation of nominees to formalize the implied consent policy. If at a later date the Senate changed hands it’s unlikely they would change it back, as it benefits Republican presidents as well as Democratic ones as well as helping create a more efficient judiciary. This is a solution that benefits all concerned, even if it does create a conflict at the outset.

Stacey Abrams Faces a Difficult Choice

Former Georgia state representative Stacey Abrams is in an enviable but difficult position. Two years after her loss in the Georgia governor’s race she has been instrumental in the voter registration effort that helped deliver the state’s sixteen electoral votes to Joe Biden. As a result, odds are that the job of chairman for the Democratic National Committee would be hers for the asking. From that platform she could expand her efforts to get Democrats to register and vote all over the nation. But she has to consider if that opportunity is worth giving up the chance to run for governor again in 2020.

Abrams lost the 2018 governor’s race by a small margin amid allegations her opponent, then secretary of state Brian Kemp, had unlawfully purged hundreds of thousands of minority voters from the rolls without notifying them. Biden’s victory as the first Democrat to carry Georgia in the presidential race since 1992 indicates a strong possibility Abrams could succeed in a challenge against Kemp in 2022; that chance may have increased in the aftermath of Kemp’s defense of the state’s electoral process and refusal to interfere with the awarding of the peach state’s electoral votes to Donald Trump, potentially alienating a significant portion of the state’s Republican voters.

With the gubernatorial race only two years away, Abrams would not be able to take the DNC job while preparing to make her second stab at the governor’s mansion. If she has any ambitions for federal elective office the state’s highest office would look better on her resume than the party chairmanship, which more often goes to someone who is no longer looking to run for public office. Stacey Abrams has some long, hard thinking ahead of her to choose between those two jobs.

Donald Trump thinks the nation will cry “Uncle”

In the aftermath of Donald Trump’s electoral defeat by Joe Biden the president has filed dozens of lawsuits in numerous states trying to get the results overturned so he can be declared the winner. He has succeeded in a few instances, but the number of votes affected in those cases hasn’t been anywhere near enough to change the outcome of any state’s results. The majority of his attempts have been met with steadfast denial of his motions by the courts, even in federal courts presided over by judges he himself appointed to their positions. In every instance he has expressed his intention to appeal to higher courts, all the way to the Supreme Court if necessary.  This course of action appears to be completely irrational to most observers until we consider just how successful Trump has been in the past with these kinds of tactics.

Donald Trump has lived his life doing exactly what he wants, when he wants and how he wants. If someone takes issue with his behavior he will usually bury his opponent in lawsuits, filing claims and motions, often without actual merit; he relies on his ability to continue paying lawyers to generate so much litigation against his adversaries that they eventually give up, either dropping their claims altogether because they’ve run out of money to continue fighting, or agreeing to settlements for amounts far below the value of the claim just so they can get on with their lives. It is because this strategy has worked so well for him in the past that he is pursuing it in his election challenges. The problem is that he doesn’t realize that this is a different kind of ball game than before.

If Donald Trump’s post-election adversary were Joe Biden personally, his scorched earth ploys might have a chance of succeeding. Biden certainly doesn’t have the financial resources to defend against all the litigation Trump is throwing at the issue, and it’s unlikely the DNC would be able to commit sufficient resources to help him overcome all that much. But the fact is that since the election is over Biden doesn’t have to defend anything, and Trump has to fight against the federal and state governments who have a vested interest in defending the integrity of the election process. Their combined resources are more than sufficient to beat back Trump’s efforts at every turn, and no amount of unsubstantiated claims of fraud will be able to cause any of them to raise the white flag and declare him the winner just to shut him up.

Could Mike Pence be Prosecuted for Pardoning Donald Trump?

Some people have put forth the idea that perhaps Donald Trump might resign as president in the days before Joe Biden is sworn in as our new president in order to give Mike Pence the opportunity to accede to the job so he can grant him a pardon. There is a historical precedent for this in Gerald Ford’s pardon of president Richard Nixon, but there are a number of things to consider that would appear to make that idea problematic.

Part of the problem is that such a pardon would almost certainly be vague, with no mention of any specific acts or wrongdoing. While the Nixon pardon was similarly non-specific Ford was able to get away with it because everyone just wanted it to be over so no one challenged the pardon in court. Whereas at this point everyone is again ready for it to be over it is almost certain that someone would try to have any pardon in this case overturned. Another roadblock is that by pardoning Trump Pence might be opening himself up for criminal prosecution.

A presidential pardon confers on the recipient immunity from any criminal penalties for the offenses it covers. Granting a pardon before there are even formal charges filed, much less a conviction, shuts down the justice process before it can even begin. There is no doubt that a sitting president would be able to grant a pardon like this after he becomes aware of the possibility of someone facing prosecution, so long as that knowledge was obtained after he was already president. But in the case of Pence pardoning Trump, we would have one person agreeing to resign specifically for the purpose of the other person to grant a pardon of criminal activity that they already knew had taken place. That would nicely fit the description of a conspiracy to obstruct justice, and if the actual pardon was upheld there could also be a charge of actual obstruction of justice.

One might ask if this is a crime why wasn’t Gerald Ford prosecuted for it, since he pardoned Nixon after he resigned? One reason is that he was president for more than two years after he pardoned Nixon, so nobody would have been interested in pursuing it. But also, we have the difference that Ford was nominated to be VP a full year before Nixon’s resignation, at a time when he had no reason to think he’d need to resign. But if Trump resigns this late in his term and then gets pardoned there will be no doubt that he and Pence agreed to the pardon beforehand, thereby establishing a conspiracy to subvert the criminal laws. And while Pence were president, he would not be able to be charged; but as soon as he left office, he would be liable for any crimes committed during that short term.

What is interesting is that the question of whether Donald Trump could be similarly charged would hang on whether the pardon Pence issued him held up under any legal challenge. If it were upheld the crime of conspiring to obstruct justice would probably be covered under its provisions and he would only be named in Pence’s charges as an uncharged coconspirator; but if the pardon were invalidated for any reason, Trump would then also be on the hook to be indicted as well. This would certainly bring a bizarre end to one of the most tumultuous presidencies in our history.

What if Trump Tries to Pardon Himself?

There has been a great deal of speculation regarding the fate of President Trump once he leaves office. One of the issues that has generated the greatest amount of attention considers whether he might try to pardon himself. A similar question is whether he might instead resign before the end of his term so that VP Mike Pence could step in for the final few days and issue Trump a pardon. An analysis of either of these possibilities should begin with the question of whether either one is even allowed under the Constitution.

Article Two, Section 2 of the Constitution states the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. The only time a president has received a pardon from another president is when Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”. It is largely because of this pardon that anyone is even considering the possibility that Trump might receive a pardon. What sets this pardon apart from all others is that at the time it was issued Richard Nixon had not been formally charged with any crime, so it sought to preempt any proceeding which might bring forth an indictment. Lots of people believe that Nixon’s pardon proves that Trump could be pardoned by Pence in much the same way, but that is by no means a foregone conclusion. The main reason the Nixon pardon stood is because no one sought to challenge its validity, whereas it is almost certain any such pardon issued by Trump or Pence would be subject to a court dispute.

The problem with such a broad, preemptive pardon as Nixon’s, as well as any liable to be issued on Trump’s behalf, is in its vagueness and the fact that the actual commission of any crime has not been established. How can a pardon be granted when no evidence has been presented that it even happened? Let’s remember that when a person accepts a pardon, he is actually admitting he is guilty of the crimes for which he received it. A pardon for no specific crime would appear to then be a pardon of every imaginable crime against the United States, from crossing against the light in a national park to molesting children in the White House residence; acceptance of every crime in general would rob the recipient of the ability to defend himself against any crime specifically. I don’t think any rational person, let alone the so-called “originalist” majority of Justices on the Supreme Court, would imagine that the Founding Fathers had such a broad interpretation in mind when they included the pardon power in the government’s founding document. Frankly, it makes no sense to think a pardon could be issued for an offense of which a person hasn’t even been accused, especially when no specific charge has been levied. Add to these things the fact that a presidential pardon, whether by Pence for Trump or by Trump for himself, would only help him avoid punishment for federal level crimes, leaving him still vulnerable to prosecution for crimes at the state level, where he would probably face the heaviest penalties in the first place. For all these reasons I personally doubt there will be any last minute pardons before Donald Trump leaves office as president.