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August 26, 2017


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Patrick S. O'Donnell

When you combine 1) the inordinate and structurally counter-democratic or anti-democratic powers and assumed prerogatives of the "executive presidency," which has only increased since WW II (see the relevant titles on this topic by Garry Wills and Ryan Alford), 2) with a narcissistic megalomaniac in office who believes or acts as if he believes that plutocracy and kleptocracy are synonyms for democracy, and 3) Republicans in Congress who more often than not act like ideologically-motivated sycophantic plutocrats with a dispositional aversion to truth, while exhibiting the authoritarian's lust for power, and an overweening penchant for the dark arts of denial, deception, and wishful thinking in public fora, it becomes increasingly difficult to speak meaningfully of "checks and balances" ....


Now I know why the so-called president is so adamant that the confederate monuments stay in place. Those shameful monuments serve as a finger in the eye of those who oppose white supremacy, and trump serves the same function. His pardon of Arpaio proves it, beyond a shadow of a doubt - that whites who violate the law against people of color will not be held to account before the law.

Patrick S. O'Donnell

Indeed, and occasional rhetoric to the contrary notwithstanding, Trump has by now provided us with ample evidence of his racist beliefs and behavior, even if he may not have a fully lucid appreciation of the nature and extent of racism in our time and place.


So, once again, in his partisan zeal, Lubet twists and misstates the law, history and, basically, isn't telling the truth.

Lubet states: "The pardon is now a fait accompli; even if it exceeded Trump's constitutional authority,"

No it didn't. The President has carte blanche on pardons, as most kids in elementary school learn. Presidents have engaged in some very questionable pardons, but these cannot be challenged on the ground that an exercise of the pardon power exceeds the president's authority.

This pardon may or may not have been wrong. It lifted jeopardy on a minor process charge against a retired 86 year old. (According to NPR: "The misdemeanor criminal conviction handed down Monday by District Judge Susan Bolton found that Arpaio knowingly violated a federal judge's order in 2011. At that time, Arpaio was told he could not detain immigrants simply because they lacked legal status — but for 18 months, his deputies carried on with the practice.")

Aside from the long list of Democrats who have engaged in defiance of court orders on far more serious matters and on far more shaky grounds, about which Lubet apparently either knows nothing or will say nothing because he is blind to the faults of anyone in his "party" and thus a political hack, to claim that a pardon of a retired 85 year old who was found to have committed a misdemeanor contempt by reason of detaining undocumented persons is a threat to our democracy, and the independence of the judiciary, is a scam and bs.

To cite the Declaration of Independence is a dog whistle, and could be construed as Lubet's call to something much worse than just doing as he is doing: bloviating on a blog and in newspaper op eds in a seeming unending quest for attention by purveying twisted representations of history to smear and undermine the "other party."

What a world it would be if Lubet got his wish, and eliminated all Republicans, and then sat back and remained completely silent as his party continued to engage in all the really awful things that they do too. No thanks, Lubet.


Above comment is "whataboutism" at its finest.


That's right Anon.


"Lubet states: "The pardon is now a fait accompli; even if it exceeded Trump's constitutional authority,"

Do you agree with that statement? What about it, Anon?

What about the nature of the crime? The age of the defendant? The likelihood of repetition?

Your comment is a model of arrogance and obliviousness, at its finest.

Deep State Special Legal Counsel

From a criminal defense attorney's and prosecutor's perspective, Sheriff Arpaio was probably good for business. More prosecutors, no layoffs... Scare the crap out of detainees who will be grateful to pay us private attorneys the fees we richly deserve. More laws, tougher enforcement. Beautiful, believe me.

Deep State Special Legal Counsel

To get back to seriousness. Sorry for my pithy but trueish comment above. We all need to work. Food isn't free.

anon at 12:25:

"Dog Whistle?" Please. Professor Lubet was citing to precedent; what lawyers and judges do on a daily basis. In this case, he cited to the Dec of Independence. A good, organic source, wouldn't you say?

Nixon's "Southern Strategy," Reagan's "Welfare Queen," Bush I's Willy Horton and Trump's entire campaign were dog whistles appealing to the racist underbelly of the body politic. Citing a historical document as legal analysis is not.

Jim Thompsen

I must be missing something. I don't see any problems with this sentence: "The pardon is now a fait accompli; even if it exceeded Trump's constitutional authority."

As I read it, the sentence makes no implications about whether the pardon is constitutional. It simply says that even if the pardon is unconstitutional, the pardon will stand. This sentence is about whether the pardon will be reversed. The claim is that the constitutionality of the pardon is irrelevant to this particular question.

What am I not getting here?


"even if the pardon exceeded the president's authority, the pardon will stand"

The pardon power is granted by the constitution to the president, and it is one of the most independent of the president's powers. This pardon didn't exceed the president's constitutional authority. Period. To suggest otherwise is ludicrous. What are you not getting here?

IF I state "Even if the president broke the law, the pardon will stand" ... then I am engaging in a misrepresentative formulation that suggests that the law may have been broken. "Even if Johnny stole the pie, he has eaten it in any event" suggests that it is at least possible (or probable, as otherwise, we wouldn't need to consider the issue) Johnny stole the pie.

What are you not getting here? (Other than my last comment, which was deleted, presumably because it questioned the role that Lubet is trying to play with respect to these issues, which is, as I see it, dubious, at best.)

Steve L.

Jim Thompson: You haven't missed anything. Writing before the pardon was granted, Redish and Feldman argued that it would be unconstitutional. Their opeds are linked in the post.

Once the pardon was granted, however, their constitutional arguments no longer mattered, even if they had been right (about which I did not express an opinion), because only the DOJ can enforce a contempt citation.


They weren't right, Lubet.

Can you not concede that?


Amending the last comment:

"even if the pardon exceeded the president's authority" assumes that possibility.

The pardon didn't exceed the president's constitutional authority.

Both authors conceded that the pardon power is granted by the constitution to the president, and it is one of the most independent and plenary of the president's powers. This pardon didn't exceed the president's constitutional authority. Period.

To suggest otherwise is ludicrous, especially in light of the precedent that Lubet himself has cited in the next thread.


I think this is a semantic question - and one I discussed with Steve before his post. The pardon power is not unlimited - it only applies against "offences against the United States" and not to civil cases or cases under state law for example. Logically, there is a question of whether contempt of court is an "offender against the United States" and even if so, whether the use of the pardon power is precluded by seperation of powers. The problem is that former Presjdent Taft, ad Chief Justice (and solicitous to presidential authority because, well....he'd been president and the President was a member of his party) in Ex Parte Grossman ruled that the pardon power extended to Criminal Contempt. The other side had, imho, the better argument, but, that's the state of the law.

So...Steve has a point, but probably not a winning point, even if I agree with him/


Remember, Taft was quite beholden to both Harding and Coolidge for being appointed as Chief Justice, and was of their party. It showed in his early decisions,


Another one of Lubet's whoppers I just noticed.

A author wrote: "... legally speaking, Trump has the power to issue the pardon. ... [the constitution] offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment."

Lubet reads that conclusion, and tell us:

"Writing before the pardon was granted, ... [both authors] argued that [the pardon] would be unconstitutional."

The author quoted above took great care to point out that the pardon would NOT create any constitutional "crisis" because the pardon would not be unconstitutional.

Can we rely on Lubet's version?

also anon

Jesus H. Christ, anon--he's not arguing your point, he's arguing his. If you want to assert that Redish and Feldman are wrong and there are no limits on the pardon power, go write your own op-ed, or blog post, or just comment on theirs. Excoriating Lubet for not making the argument you want made is just petty. Repeating it ad nauseum is clueless. Go away.

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