Communique 12-24-20 "Do You Swing?"
By Philip Drucker
In these waning days of the Trump Presidency (if you still wish to call it that) as expected and right on time the deposed President who refuses to admit he lost the election has decided to start handing out Pardons. Crazy ones, to cronies, corrupt and convicted politicians and perhaps the most disturbing of all, flat-out killers of unarmed Iraqi men, women and children found guilty in an American court of law.
And so, for those of you who are paying attention, Trump has “normalized” lying, cheating, stealing and yes, murder if it is in some manner “transactional” in nature. One day we will find out what was the quid pro quo Trump got for his recent spate of pardons the swamp, his father-in-law and a few Blackwater missionaries who just got a little bit too frisky with someone else’s life dime.
Does this mean Trump has set a precedent for the idea that even reckless, depraved heart murder that is totally indifferent to life is “OK” as long as it is done as part of a contract, or other such economic transaction? And if the President himself benefits directly with at least a little skim off the top for his troubles?
Needless to say, the implications of the Blackwater pardons are both frightening and must not be forgotten and fixed rather than let another such travesty of justice take place. But let’s start here. Where in the Constitution does it say the President has the right to abuse the Pardon Power? It doesn’t and it never will. An abuse of any power under the Constitution is an unconstitutional act that can be subject to a constitutional remedy.
Further, the Pardon Power cannot be read without referring to the overall construction and established norms and prerogatives of good governance and to establish a more perfect union contained in the Preamble of the Constitution. These are also constitutional directives that inform us as to the true meaning and spirit of the US Constitution, namely life, liberty and the pursuit of happiness for all.
So, let me ask you this, how does pardoning family members, corrupt politicians and murderers help us form a more perfect union? The pundits will throw words and phrases at you to prove their point. The word “plenary” as in the Pardon Power is plenary, meaning next to if not “without limitation, or at least can be utilized by the Executive free from any checks or balances, or input from the other branches of the Federal government.
But, doesn’t that mean while the President can issue a pardon of his volition and pursuant to his own prerogative, if that pardon is say questionable, is it no longer subject to review by one of the other branches? There seems to be quite a bit of approval for this position, but I say it is nonsense. In short, the Constitution of inclusion, not exclusion, meaning as a practical matter, if the black letters do not themselves appear in the text, it is still possible in the interest of protecting the guarantees in the Constitution, it might be there, somewhere beneath the surface, but necessary to carry out the freedoms. Equality of justice and due process rights we all cherish as Americans.
So, let’s discuss what words are not found in connection with the Pardon Power. Do you see the words absolute or plenary? No, we don’t. Surely the Founders were aware of these words yet did not put them into the Constitution itself. An oversight? Not likely for if we take a look at the further construction of Article II Section 2 Clause 2-4 the Founders constructed a rather clever scheme for reigning in the Pardon Power.
The Pardon Power can be found in Article II Section 2 Clause 1 of the Constitution;
“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. (emphasis added).
Seem rather impressive, doesn’t it? A power reserved to the presidency as one of the checks and balances the president could employ without the interference of Congress. Pesky advice and consent and all those other boring requirements of good governance the Founding Fathers thought, fought and eventually enshrined in the Constitution as the most powerful of laws, neither strictly criminal or civil in nature, but of a Constitutional, standing tall above the rest, a document to which all other laws must adhere to and essential in a nation to be bound by the rule of law, where no one is above or below the law.
The Constitution must be read within the practical confines of the entire document, devoted to forming a representative government based upon democratic principles for the purpose of forming a country by, for and of the people.
These are not words without meaning. Regarding the President, he cannot place himself above the Constitution, the law. That brings us to our first direct question. Can the Orange Ogre Who Fancies Himself Above the Law Every Chance He gets pardon himself? The answer is almost assuredly no. For to do so, would be to place his less than royal carcass above the law.
Further, the word “grant” seems to indicate the ability to give to another and not oneself the “gift” of clemency and hopefully a new start for those who are worthy of such consideration and honestly, none of which we are currently seeing here. Another commonsense way to look at the Porky the Ocher Dork Orc pardoning himself flies right in the face of his Constitutional duties under Article II Section I under which the President is required to take an oath of affirmation;
“Before he enter on the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." –Emphasis added
If indeed, the President faithfully executed the office of the President, why would he need a pardon? The very act of pardoning does not mean “not guilty” it means the participant(s) in a pardonable offense returns to a state of legal fantasy in which the offending events leading to the pardon never existed at all, or at least not in the legal sense and therefore the pardoned individual cannot be punished for his or her acts deemed by the President and the president to be necessary of clemency.
So, I broke the law, said the outgoing enema of the people, so what I’ll pardon myself for my crimes. But, doesn’t that admit wrongdoing of a Constitutional nature, and hence, here we are again, placing the putrid burnt lip turnip of greed, greed and more greed above the law? Why yes, it would. Talk about failing upwards for not doing your job.
If we proceed to Article II Section 4, there is yet another express exception to the abusing the Pardon Power;
“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Once again, one, not the only form of redress for an incorrigible, dishonest and in our case a mule headed megalomaniac of such low moral character, he should rightfully have been removed from office. The list of misappropriations, deceit, and yes, acts of treason are so numerous and in many cases profound so as to prohibit any list that would even approach the enormity of the disgrace we must now face as our duty to see that justice is done.
Admittedly, there is not a whole lot of Supreme Court Case Law on this subject. Most of the cases are quite old dating back to the 1870-1880s regarding the Civil War.
This for the most part is due to a lack of any president seriously challenge the power of the Pardon.
As for the recipients of let’s call them less than honorable or even qualifying pardons and commutations (merely ending the individual’s sentence), can later be challenged? The leading case is an 1866 case Ex Parte Garland a case where Andrew Johnson pardoned a former Confederate soldier. The Court in its infinite wisdom opined that the power "extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and final judgment."
So where does that leave us today? Without recourse? Again, I think not. Why allow a president who defied his oath of office at every turn get to hold onto this singular somehow “magic” power of pardoning in an effort to, strengthen our Union? Protect us domestically and in the foreign arena? Doesn’t sound right to me.
If we are looking for more recent experiences with the Pardon Power, we could look to the Nixon years but let’s be blunt, Nixon didn’t do anything nearly as bad as Trump so not much help there. If we are to look toward a more modern solution for a modern presidency I always start with the presidency Theodore Roosevelt.
A man of great intellect and morality, when asked what gave him the right to “speak softly and carry a big stick” when it came to breaking up the Monopolies that ruled the Gilded Age, certainly not a right constitutionally granted specifically to the president, TR went forward and released his “Square Deal” not to dismantle the upper classes per se, but to help the lower classes gain some sort of parity and dignity. In short, his political goals could not be separated from his moral goals.
Essentially, he was a man, a humanitarian at that, and did not feel the need to “check-in” his morality at the front door and lead the nation as a cold-hearted automaton chained to a world of abstract arguments that amount for an enormous amount of political hand-wringing when the answer is obvious. Equal justice and application for all persons under the law with no one being above the law.
Between the years of 1902-1905 Teddy brought 190 indictments against corrupt government officials. Not a one ever received a pardon. TR is also responsible for creating the Pure Food and Drug Act, Meat Inspection Act, Regulated the railroads as a public utility with access for all. He modernized the US Army and the Navy.
He founded the US Forest Service and created 4 game preserves, 5 national parks, 18 national monuments, 51 bird preserves, and 150 nation forests. All of which have come under indiscriminate attack via Executive Orders of the Trump regime.
None of these acts or abilities are mentioned specifically in the Constitution. But in much the same way we would no longer doubt a current president to wield these powers with little to no additional government interference, can we say the same about the Trump era? Including his out of the bounds of reasonable, constitutional analysis, if that includes even a scintilla of intelligence and common sense, as well as a sense of morality? If even possible from the block of dead in the head driftwood for brains monster that now occupies the White House?
With all that said, I honestly do not know of any reason Trump is still in office. Perhaps there is great wisdom in allowing the peaceful transfer of power between elections, even in this tainted travesty of treason, sedition, conspiracy of dunces and most likely constipated crime family of deadly, yes deadly as in Covid-19 deniers who have caused untold misery and continue to do so during their last dying days of death defying feats of incredible cowardice, stupidity, inhumanity, all done to either benefit himself, or please the racist rabble who still support him, in most cases, to their death.
This was no presidency. It was and still remains a cult not of personality, but of no personality, intelligence, empathy or morality on the part of their anointed leader. The Constitution was never meant to be an experiment in ineptitude without consequences. To say the Founding Father would approve of such actions is beyond the ken of actual constitutional analysis, discussion or application.
It may still seem dark today, with a little under a month to go of the escalating madness of King Don and what’s left of the embers in the MAGA fire pit of hatred about to lose whatever oxygen it can steal from the other useful idiots still around to blame Hugo Chavez for their problems.
Over the years, the Constitution has changed to the degree it cannot be considered in any reasonable interpretation as a “static” document. Change comes slow, but it comes none-the-less. Trump will go, one way or the other. Biden seems to have a fairly well developed sense of morality. I can’t wait to see what he and his cabinet of Americans can and will achieve. Just my guess, but the next four years are going to be good, very good indeed for the average American. No crystal ball here, but that’s my take. Yours?
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