Going through a few more of your questions.
Q: Do you think the legal challenge of Trump’s pardons may be the real reason that the SCOTUS seat was filled so quickly?
I think the answer is more straightforward. Mitch McConnell filled the seat so quickly because he was pretty sure Trump would lose. He also knew there was a chance the Republicans would lose control of the Senate. Without a Republican president, he wouldn’t be able to push through his reactionary right-wing justices. He was acting as if it might be the last time the Republicans control both the Senate and the White House.
Q: If a person were to have their pardon challenged in court, who would do the actual challenging? Who would have standing?
One way is what is happening right now, in the Flynn case. Judge Sullivan granted permission for a number of people to file what ‘s called an amicus brief, a brief submitted to the court by nonparties arguing for a particular position. You need a reason, then the judge decides. A lot of these briefs will urge Sullivan to find that the pardon is illegal.
If Sullivan agrees and declares the pardon invalid, Flynn will appeal. It will go higher and no doubt end up at the Supreme Court. (The Supreme Court takes only a fraction of cases, but this would satisfy the criteria.) The Supreme Court will rule on narrow grounds, at which case, we’ll find out more about what the Court thinks.
Another way is for federal investigators to ignore the pardon, file an indictment and then the person who received the pardon will challenge the indictment.
The Supreme Court decides how to interpret the Constitution. If we don’t like how the Supreme Court interprets the pardon provision, there is the option of amending the Constitution. This has become very difficult. At the time the Constitution was drafted, it wasn’t as hard (the country was smaller, power was concentrated in the hands of relatively few people, so fewer people had to agree.)
One of my followers on Twitter had a sort of hilarious idea for how to force a Constitutional amendment ruling out corrupt (self-serving) pardons:
I doubt this is Biden’s style, but when a Democratic president is in office, Republicans (shall we say) take a different view of things. Each week he issues a cuckoo pardon just to make the point. “This week I pardon every Democrat for everything.”
😂
Q: If Trump granted someone (e.g. one of his children) a pardon for one or more specific crimes, and that pardon was then challenged and revoked (overturned?) by the court for being a corrupt use of the pardon power, where would that leave the person who was pardoned in a legal sense? Would they suddenly be more exposed and vulnerable to prosecution since their crimes had now been revealed or explicitly laid out through the pardon but were no longer protected by it?
There are people who don’t want pardons, and turn them down for various reasons. Tonight Axios reported that Trump isn’t just accepting pardon requests but blindly discussing them “like Christmas gifts” to people who haven’t even asked, sources with direct knowledge of the conversations tell Axios’ Jonathan Swan.
If a person doesn’t think they are in danger of being investigated or charged, they might turn down a pardon as a stigma.
It isn’t clear how specific a pardon has to be. Gerald Ford’s pardon of Nixon was very broad “any crimes he might have committed during his presidency.” Because that pardon was never challenged, we don’t know if it’s too broad, butI could see Trump pardoning his kids for any federal finance crimes arising from their private businesses. (Of course, the problem with such a pardon is that most such financial crimes would be state law and not pardonable.)
Q: I wonder if Trump’s grand plan for 2021 and beyond is a massive MEDIA GRIFT. He knows he lost the election; however, he is raising huge sums of money as he refuses to concede. I could see him riding this wave for YEARS, as long as he has something to claim. It’s part of his theater of being the “working man’s” politician. What could be easier? He thrives on the attention and it’s way easier than selling wine, education, hotel rooms, etc. And he has figured out how to get at the money, via “fine print”. I think this may be his next “Trump product”. The fact that it hurts democracy doesn’t bother him — it’s easy money.
I agree. Totally.
If norms are so relied upon for government to operate effectively, and those norms are trounced, why can’t those norms be codified into laws? Would it help at all?
Trump ignores laws. He ignores rules. Adding more laws and rules won’t help. Moreover, it’s clear to anyone who has been paying attention that Trump ignores rules and norms. I maintain that his supporters like the fact that he ignores rules. Consider how many Americans voted for Trump even with everything we know about him.
One vulnerability of democracy as a form of government is this: At any time, a majority can elect leaders who promise to trample rule of law and subvert democracy. If enough people want democracy to end, it will.
The way to prevent a lawbreaking norm-smashing president is not to elect him to office in the first place. Unfortunately, the Republican Party decided some time ago that it must win at any cost, including violating norms. So the real problem is twofold: A party willing to break rules and tolerate rule-breaking, and a large portion of Americans willing to vote for that party.
The short term solution is to outvote them and outwork them.
On a related note, someone on Twitter asked this:
There is no law against making absurd, crazy claims. Frivolous lawsuits are not uncommon. If it were anyone except the presideng and his lawyers making these absurd claims, they would be dismissed as the ravings of a lunatic.
The criminal justice system isn’t the place to find the answers to the problem. When democracy is being attacked from within the solution is more democracy: Strengthen our democratic institutions and do what we can to make sure all voters who want a strong democracy vote.
Q: You know how everyone was guessing that the Republicans were being blackmailed, I had no issue w/your explanation/description of the implausibility of that. But could it be that people are threatening death, poisoning, HCL’ing? I have to submit this ? to you, otherwise it will not rest, probably b/c of the reality-like-espionage novel context.
It’s not possible that the Republican Party leadership—including Senators—are falling in line with Trump, who kowtows to Putin, because they are afraid Putin will poison them. We have enough national security. They are not afraid of Putin. They admire and like Putin. They want America to be a Putin style oligarchy. (For new followers who are shocked at this, read this post.)
