Thursday, November 7, 2019

Congressional Pardons

Perhaps Congress should allocate itself the power to both grant pardons and/or to review&veto Presidential pardons.

[Picture of scales]

I see it as a misdesign that the President has an exclusive, unchecked power to pardon, and without a corresponding power held by the people. In a Democracy, an unstated meta-rule is that a consensus of the people through its representatives in Congress, its consensus body, should always dominate decisions by the Executive.

The Executive is just one person, and subject to whim. As I see it, we grant them power not because we think it safer to put all that power in one place, but because we fear Congress might not achieve consensus fast enough or at all in some cases, and we might find ourselves crippled and unable to react fast enough for everything that comes up in the world. However, in any matter of disagreement between Congress and the Executive, if Congress does muster consensus, it seems to me that's generally preferable as a statement of what We The People should want.

A “review and veto” power would be useful as a check just in case there was ever a lawless President promising collaborating criminals a Get Out of Jail Free card. Whether or not one agrees that Congress should always win every contest of wills with the President, it's clear that the unchecked power to pardon fellow criminals must be reconsidered in at least some way.

As for issuing pardons directly, I'd not expect Congress to issue a lot of them itself because each would require a lot of politicians to agree about a single individual, and usually it would not seem worth the risk. But in the case of malicious prosecution by the DOJ, consensus of We The People should ‘trump’ executive power.

It might also have occasional value in other situations. For example, if Congress decides that marijuana possession, use, or even sale should not be criminalized after all, perhaps regretting that it ever was, then along with a change in the law, it could order blanket pardons of those convicted under prior law, rather than waiting for the Executive or the courts to sort that out, and assuring a more uniform application of new social understanding.

Author's Notes:

If you got value from this post, please “Share” it.

The essay which became this post started as a tweet thread by me earlier today.

Our much-touted checks and balances have proven slow and ineffective at fending off attacks on the Constitution and our system of Democracy. We need to find ways to strengthen the power of the people against tyranny. That begins with discussions like these.

Sunday, November 3, 2019

Process Due

Seth Abramson wrote in a tweet, “Our descendants won't distinguish between pro- and anti-Trump, they'll just say, ‘What were those idiots thinking?’ “

Folks outside the US no doubt ask it now.

It's a fair question, but maybe the wrong one.

Constitutional government needs clear process as safeguard against idiocy. We just can't rely on intelligence to be there, nor idiocy not to be, in every moment of every day. That's too much to ask.

I don't mean to let us off the hook. We must introspect on how we got here. To assure intelligence is reliably present and available, it must be encoded in our processes, not left as an exercise to the individuals trying to interpret those processes.

Size is Relative

Toward that end, we too seldom question the oft-repeated myth that “minimum government is best government,” fed us by those who want government kept malleable.

Too big government isn't good.
But too small isn't either.

I have lately tended toward the belief that government must grow in proportion to propensity for abuse, not even just in reaction to abuse, but even proactively, anticipating the likely and covering reasonably anticipated cases that follow from trends.

Libertarians grump whenever government grows, but public response needs to be “If you exploited the common good less, we wouldn't have to complicate this so.”

The asymmetry is that we're stuck in an arms race where conservatives want to escalate their hold over society, and they use Jedi mind tricks to make progressives feel bad about responding.

If they want government to stay small, they should “play nice.”

Our Constitution needs repair, more process & process detail, if we're not to leave procedural action to the chance of idiocy or partisanship.

We need such additional detail to assure a nervous public in times of stress that processes being applied were not developed in the moment to serve Machiavellian ends, but are our normal way of attending to all problems, no matter who creates them and no matter who administers them.

Who Could Have Known?

“What were we thinking?” you ask, you who look on from afar, from across the ocean or from the far future.

Well, “what are you thinking?” Your are us on other days. Don't assume your greater intelligence will carry the day. Ask instead, “does process protect me?” Because unless your answer is a very certain yes, you should be as panicked as we are now, and you should be readying for your time to face this same event.

We look back at you and feebly shrug, “Who could have known?” It's a lame excuse, but somewhat true. This problem is new to us. Some saw it in advance, but many didn't. And so, collectively, because we act as a collective entity, we did not see this. And now, mired in it, we lack clear and strong process to get us quickly or reliably out.

But for you looking on, you all see it. Do not make the error of thinking this a uniquely US problem, of thinking yourselves immune. Don't expect “Who could have known?” to defend your honor when your time comes. Act now to buttress your respective constitutions for what's surely to come for you as well.

Trump-wannabes the world over are taking notes.

The Death of Shame

What gives Trump his power isn't just utter GOP corruption and Dem lack of spine.

It's that there are "norms of behavior" we have asked but not required by codifying them in Constitution or law.

We must fix that. The Constitution needs to grow.

The question isn't whether additional rules are needed, only whether we'll have the spine to insist on such necessary change, lest we endure a recurrence for having failed to.

We've relied on social mechanisms like decorum and shame in lieu of rules. But Trump is shameless. His political power comes of seeing decorum isn't a compulsion for him to conform. He sees an ignorable nicety, and his goal is never to be nice. He sees nicety as weakness.

If we get out of this, still an open question, we must add more rules.

Conservatives will cry "bloat". But too bad. Blame yourselves, GOP. You've earned every bit of clarifying legal text that comes in response.

Some Examples

We need process that does not reduce us to arguing whether major felonies are reason for impeachment. We might not enumerate a full list of reasons to impeach, but we should enumerate some, just so we don't waste months debating at least those.

The Constitution intends discretion about allowing more than just felonies, but that discretion should extend in the other direction, allowing discretion about ignoring felonies. It should say flat out that if there are felonies afoot, or there is even just strong reason to suspect it, impeachment must begin. It should say that if impeachment succeeds in the House, the Senate must engage it in the Senate under rules that are fair to both parties to offer substantive discussion without it being procedurally buried.

Even the question of burden of proof needs to be better spelled out. If a President is seen to act in a way that is adverse to US interests, but we can't prove intent, that might be sufficient to avoid a criminal conviction, but do we want such a person in office? We have to either have the clear right to try a sitting President or an easy path to removing the President so they can stand trial. We should not be forced to endure a criminal President simply for lack of some technical detail. Presidency isn't a right, it is a privilege and a responsibility.

Benefit of any doubt in the reliability and good will of our President needs to be given to We The People, not a dubious President.

Going Forward

I speak as if we might get out of this. That's overly optimistic. We won't.

Maybe—hopefully—Trump will be impeached. But even so, he's shown where Democracy is weak, opening a Pandora's box unlikely to be closed.

Such attacks will recur, and not just in the US. We won't get out of that. We can only prepare. Please let's do that.

Author's Note: If you got value from this post, please “Share” it.

This article began as a tweet thread of my own in response to Abramson's tweet quoted above. I've done some editing, rearranging, and expanding here.