In 1788, Virginia called a convention to debate ratification of the new American Constitution, enacted in Philadelphia the previous year.
The pardon power proved to be a sticking point for some delegates. george masonthe principal author of Virginia's own constitution, was among those who concerned that the unchecked ability to unilaterally condone criminality could lead to abuses of power. What if the president “can frequently forgive crimes that he himself recommended”?
James Madison recognized that this would be a serious abuse, but argued that there was a solution.
“There is a security in this case which gentlemen may not have noticed,” Madison saying“If the president is suspiciously associated with any person, and there is reason to believe that he will protect him, the House of Representatives can impeach him; [and] “They can expel him if they find him guilty.”
This episode has attracted new attention in the wake of the January 6 riots and the impeachment trial they initiated. President Trump was impeached but not convicted.
That was a mistake in my opinion. But I'm not here to re-litigate it. I want to look to the future.
The British statesman Edmund Burke maintained that one of the “fundamental rules” of a decent society was that “no one should be the judge of his own cause.
For the founders, this idea informed the logic of the entire constitutional project. Burke's observation was so universally accepted that it often emerged (sometimes without attribution) in debates at constitutional and ratification conventions.
Madison invokes the idea in Federalist 10, in the context of factions and the need to have separation of powers. “No man is permitted to be judge of his own cause, for his interest would certainly bias his judgment and, not improbably, corrupt his integrity.”
Alexander Hamilton cites it in Federalist 80 as the reason why federal courts should resolve disagreements between states: state judges were supposed to be biased toward their own side of the dispute.
This idea lies behind all of Congress's powers and responsibilities, including advice and consent, exclusive authority to tax and spend, the power to declare war, and, of course, impeachment. Presidents are not arbitrary rulers. They are administrators, with defined and limited powers.
On Monday, President Trump established a $10 billion lawsuit filed by himself. In his first term, Trump's tax returns were illegally leaked. When Trump returned to the presidency, he filed a lawsuit against the Internal Revenue Service. So, as a constitutional matter, Trump is suing the executive branch he leads for a crime committed by the IRS when he led it in his first term.
Realizing that the courts might find this too sweet to tolerate, the Justice Department and the IRS (both, again, run by Trump) committed to creating a $1,776,000,000 fund (that “1776” before all the zeroes is a pun on the country's 250th birthday) that Trump will control. His main function would be to compensate the January 6 rioters, whom he has already pardoned.
The president recently said that if China invades Taiwan, he alone will determine whether the United States will defend Taiwan. “Me. I am the only person“who decides. Last summer, Trump said El Atlántico that the difference between his first term and his second was that he had no one in his administration to hinder him. This time, “I run the country and the world.” Congress and the courts don't come into this.
After Trump unilaterally and at gunpoint replaced the president of Venezuela with a docile satrap, without congressional approval, the New York Times asked if there was any limit to his will: “Yes, there is one thing. My own morality. My own mind. It's the only thing that can stop me.”
I began with a discussion about the power of pardon and impeachment for a reason. Contrary to thousands of legal experts' hours in impeachment trials dating back to the Nixon administration, a president does not have to commit a crime to be impeached. As Hamilton writes in Federalist 65, impeachment involves “the misconduct of public men” and “the abuse or violation of some public trust.” Political trials are “POLITICAL” (Hamilton's capitalization) because they harm “society itself.”
In fact, it may be legal for the president to be the judge of his own cause and create a taxpayer-funded slush fund to reward his cronies and henchmen on a whim. It is now clear that presidents can launch wars without Congress or the courts unduly interfering. But I struggle to think of hypothetical scenarios that would likely awaken in Madison and his contemporaries the now misplaced reassurance that impeachment was an available remedy.
UNKNOWN: @JonahDispatch
