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Legal Commentary

: Althouse

"Whatever happens in the courts, Trump is all but certain to be his own vortex of uncertainty over the next couple of months, until the Inauguration..."

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"... and that will be true even after there is a decisive resolution. A vengeance-seeker in the best of times, Trump had already signalled before the election that he might fire a long list of officials in his government whom he views as insufficiently loyal or willing to go along with his orders. These include the director of the F.B.I., Christopher Wray; the Attorney General, William Barr; the director of the C.I.A., Gina Haspel; and, even in the midst of the pandemic, the nation?s top infectious-disease expert, Dr. Anthony Fauci. He could seek to fire them even if he loses, or perhaps especially if he does.... Even defeated, Trump could use his executive powers to wreak significant additional damages before January 20th. He could break norms and traditions even more than he has already, and pardon his family, friends, cronies?even, potentially, himself. He could undermine public confidence in a coronavirus vaccine, or stop the government?s fight against it altogether. There are many scenarios for the havoc we might see....

Writes Susan B. Glasser (in The New Yorker).

I wonder if we'll miss this Trump-specific alarmism if/when Trump goes away. Of course, he won't go away. He'll regroup within media and carry on the havoc from the outside. He won't withdraw in humiliation at this seeming rejection. He'll feel immensely loved by the true Americans, unjustly ousted by his enemies, and stronger than you can possibly imagine.

I enjoyed Glasser's reference to the idea that the outrageous President Trump might pardon himself. I used that idea on a Constitutional Law exam 20-some years ago. It was a current topic back then. Here's Slate from December 1998: "Can President Clinton Pardon Himself?"

In 2018, Bill Clinton ? no longer in possession of the pardon power ? asserted that the President does not have the power to pardon himself. He just said "no" when asked, which, of course, would get zero credit as an answer on a conlaw exam, where it's all about the reasons you can elaborate. You've got to demonstrate your knowledge of the methodologies of constitutional interpretation. That's what matters.

Also quoted at that last link, President Trump:

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?

That's a strong assertion that the President has the power, then an enigmatic question that contains another assertion ? that he did nothing wrong. But it's obvious why someone who'd done something wrong might want a pardon. A President may have powerful enemies who are threatening to prosecute him even though ? in his opinion ? he did nothing wrong.

Full post as published by Althouse on November 05, 2020 (boomark / email).