Barring something unforeseen and truly monumental the Senate Judiciary Committee confirmation hearings for Amy Coney Barrett will dominate the political news this week. While the outcome is all but a forgone conclusion they are important on several levels one of which I’d like to discuss today. Let’s explore.
I expect Donald Trump to seek a preemptive pardon, ala Richard Nixon, for any crimes he may have committed while president (in his case possibly ever). There are two likely paths one of which has never been tried and neither has ever been tested in the courts. Both are constitutionally questionable. Therefore having what he envisions as five reliably loyal Justices on the Supreme Court is crucial for the only person Trump truly cares about – Donald Trump.
John Roberts appears to have occasionally been moved by what he feels his legacy will be and therefore did the right thing for America. Trump nominated current sitting Justices Neil Gorsuch and Brett Kavanaugh therefore, and probably correctly, he assumes they will be loyal. He is in the process of trying to get a third, Barrett, seated prior to the election. I’m not a fly on the wall (or even Mike Pence’s hair for that matter) but I’d be willing to bet that (at least in his mind) he extracted a loyalty pledge from her as a condition of her nomination. Clarence Thomas is, if nothing else, susceptible to being influenced – just give the money to Virginia (his wife, not the state). Samuel Alito will go along with anything that he perceives as helping the right wing.
Five votes on the Court can do anything and in Trump’s mind Barrett is his fifth vote. The concerning part is that Trump’s math may be correct.
Both scenarios assume Trump loses the election. The action may be a bit delayed because I doubt we will know the results on November 3rd or 4th and in any event other than a Biden blowout I expect Trump to contest the results in the courts. (The streets and his supporters are matters for another article(s).) I expect the pardon action to take place after the legal battles are lost (if in fact they are) and the results are then indisputable. As a footnote from history I contend that 20 years later we still don’t know who won Florida in 2000. What makes you think 2020 will be cleaner and clearer?
The most likely scenario is that Trump pardons himself. That way he doesn’t have to trust anyone. The reality is that the Constitution doesn’t specifically say whether or not a president can pardon themselves. I can see where the constitutionality of the matter goes all the way to the Supreme Court. Remember, more than reelection Trump wants to avoid prison and/or a financially crippling fine(s). Another term not only allows him and his organized criminal enterprise to purloin more money but it effectively gives him immunity from prosecution and makes creditors reticent to pursue him aggressively.
Less likely but plausible is that Trump resigns – perhaps as late as January 18th or 19th – and “exchanges” the presidency with Mike Pence for a preemptive pardon. That is similar to what Nixon did with Gerald Ford. The first fly in that ointment is that I don’t think Trump ever trusted Pence in the first place and it is questionable as to whether Trump would trust Pence to keep his word. Although this situation occurred once before in American history it has never been tested in court and its constitutionality is questionable.
I remember the Ford pardon of Nixon very well. I was among the majority of Americans who accepted it in that I wanted America to heal and move on. I thought Nixon’s forced resignation was sufficient to keep future American presidents coloring within the lines. I was wrong!
There is a lot at stake with the Barrett nomination. Good arguments can be made that several of the other issues are more important. However, there is no escaping the fact that seating her makes it much more likely that Trump can go unpunished for his crimes and constitutional violations. I’ve had two (and I’d argue three – Ronald Reagan) presidents who flaunted the law in my lifetime. What makes you think that if Trump gets away with his transgressions there won’t be another in the not that distant future? While that might not be in my lifetime it will certainly be in the lifetimes of my grandchildren.
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