By: Dennis Rohatyn
Can a President pardon himself? No way. Then why is there even an issue? What’s all the fuss about? I devoted an entire essay to that topic; now I must add an appendix, which I hope will not be vestigial.
The paradox of self-pardon would be swiftly resolved, but for the failure of nerve which paralyzes the nation.
I will explain it once more, then discuss why this is impermissible. It is the one “selfie” that no bona-fide ruler may take, yet there is a strong possibility that Donald Trump may do it, nonetheless. If he does, he must do it soon. If we let him, we will be signing democracy’s death warrant, as well as our own, regardless of what happens to Trump after he leaves office, or how long he survives, both biologically and politically, between now and the next election, the next revolution, or the Reichstag fire next time.
The principle that is at stake is straightforward. So is the deductive reasoning that underlies it. If no one is above the law, then a President cannot pardon himself, since that would beg the question. Conversely, if a President can pardon himself, then he or she is above the law, which is a contradiction in terms. A self-pardoning President would not be a President at all, but a monarch. Richard Nixon claimed that (by definition) he could do whatever he pleased, but the circularity of his argument was nothing if not self-evident. Now, as Donald Trump is in the last throes of his quasi-dictatorial reign, he may try the same stunt. Does he have the right to do it? Absolutely not. Will he do it anyway, and hope that no one cries foul, or blows the whistle?
That is the issue that we must confront, lest Trump pull a fast one, and pull the wool over the sheep he has fleeced for four years. Reputable rumor has it that he plans to pardon himself (among others) on January 19, 2021, his last full day in office.[1] It should not surprise anyone if he did that, although at least one person who is in a position to know insists that the very notion is “off the table,” in light of the fuses that Trump lit at the Capitol, only last week.[2]
I see it differently, for several reasons. First, Trump is a desperate man, and desperate men do desperate things. As the walls (sic) close in around him, his despair, never quiet in the past, grows ever louder in proportion to his vaulting self-pity.[3] So does his feral cunning. A man who is cornered may not get out of the box, but he is compelled to think and act think outside it, even as he strengthens all the bonds that double-bind his duplicity. “When a man knows that he is to be hanged in a fortnight, it concentrates the mind wonderfully.”[4] While Trump is not noted for his concentration, nor is his ratiocination wonderful, the events of Jan. 6 left him with exactly a fortnight in which to ponder his fate. Meanwhile, the noose still dangling a short distance from the Capitol must remind him of the dire urgency of his situation, as Bretton Wood comes nigh to Defense Department in the shape of the National Guard, escorted by the Joint Chiefs of Staff greeting the incoming regime.
Second, from the moment he leaves the White House he will face tax evasion litigation, as well as bankruptcy, not to mention multiple criminal charges in connection with the treasonable deeds that he directly instigated. As one (Republican) observer noted, “his life will be a burning hell,”[5] if it isn’t one already. While self-pardon can’t evade or eliminate all of these consequences, if it worked, it would greatly reduce the load, and thus the expense of keeping all of his attorneys busy in perpetuity. Otherwise, penury will get Trump, even if perjury doesn’t. That alone is sufficient motive for him to attempt it, then dare Congress or the Supreme Court to overturn (sic) his unilateral decision, and stop him before he can get away. To echo one of Trump’s bad mots, what has he got to lose?[6] Greater men than he have gone from riches to rags, and (barely) lived to regret it.[7] The difference is, some had a conscience. Since Trump has none, that will not inhibit him, either. Macbeth did murder sleep; Trump dreams only of murder—and making others face consequences.
Third, Trump now faces a new obstacle: impeachment. All the more reason for him to locate the nearest exit before the bolt is locked from the inside. Self-pardon is an obvious method of escape: too tempting to resist. Even Kafka’s doorkeeper wouldn’t hesitate to use it. So why should Trump? Unprecedented chutzpah is Trump’s brand, his signature line of faux fascism.[8] It goes hand in fist with his ersatz populism, as he has exploited it since the day he became a serious (sic) candidate for political office, in a country that has blurred the boundaries between tragedy and farce repeatedly since the Reagan era. Now that Trump is on the run, rather than running for another term in the White House, his carnival barking and phony wizardry, once part of his stock in trade, are less in evidence, yielding to shrill demagoguery with no pause or interruption for anything except to recite the litany of his grievances with an air of willful martyrdom. Fishing for compliments, he renders everything unto himself, ‘round the clock. Call it self-absorption, narcissism, or old-fashioned egotism; yet swell-headedness by any other name is just as obnoxious and unbearable.
Why should Trump hesitate to indulge himself? Far from being “off the table,” self-pardon is one of the last jokers in Trump’s loaded deck of cards.[9] If he doesn’t play it now, he won’t be able to use it later. Even if he refrains, or is dissuaded from doing so by one or more of his advisors, there is ample cause for worry. Paranoia begets its like:[10] hence we must be prepared in case it happens, just as Washington, DC is readying itself for the inauguration of Joe Biden as if the “threat level” were at its highest: which, unfortunately, it is.
But what does preparedness mean? What can we or anyone do to head Trump off at the passport agency? Or is that mere fantasy, on a par with that of his fanatical disciples?
If he takes a “get out of jail free” card on his way from 1600 Pennsylvania Avenue to some other destination, be it Florida, New Jersey, or (as I suspect) Brazil, where he would enjoy the company of an apprentice authoritarian much like himself, bask in eternal mindless sunshine, and (best of all) avoid extradition while seeking asylum, who or what will prevent him from the crowning achievement of his fraudulent career?
There is one immediate answer to that question: impeachment. It is more than an obstacle or an impediment; it is a roadblock, provided that the process begins before Trump puts pen to paper and declares himself exempt from conviction by any future Senate tribunal. To be blunt, Nancy Pelosi must present or deliver the Article of Impeachment (passed in the House on Jan. 13) to Mitch McConnell before Trump does the unthinkable—which he is clearly thinking of doing, and has contemplated in his unique manner since 2017, if not earlier.[11] Why is that so? Because, as Article II, Section 1 of the U.S. Constitution expressly states, “the President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That last clause prohibits Trump from even trying to pardon himself, as if the Framers anticipated just such a circumstance, Implicitly if not explicitly, they closed the one loophole that might quicken the hearts of sophists and shysters. They did so by repeating themselves verbatim, not once but twice,[12] thus making it unmistakable that the term “cases of impeachment” covers the entire process, from the date of its inception to whatever solemn verdict is reached, be it “removal from office,” acquittal, or some other, less dramatic conclusion. Whatever ambiguity beclouds the term ‘impeach’ as we employ it in casual conversation,[13] there is no doubt about what the Framers meant: decoding their intent requires no advanced courses in textual exegesis nor a doctorate in scriptural hermeneutics.[14]
Once Trump is indicted, it’s too late for him to excuse himself, even in theory—and that “theory” is bogus, since it rests on a priori falsehoods (contradictions, self-refuting premises, non sequiturs, double standards, logical howlers: in lay terms, total bullshit.[15]
That is why it is imperative for Speaker Pelosi to place the Article of Impeachment in Majority Leader McConnell’s hands as soon as possible, even if (as is likely) he does not act on it, but simply waits for the clock to run out on Jan. 20. The first time around, Pelosi waited nine days before sending the bad news across the hall, for strategic reasons that made sense to her, at the time. Now the political calculus has swung in the opposite direction, as if to realign with the moral compass, if not the wheel of fortune or the arc of destiny. Even if Donald Trump is never brought to trial, once the document is on McConnell’s desk, and he acknowledges its receipt, the clock has begun ticking—a different clock, but a clock that Trump can’t turn back, even as he tries desperately to turn it off. There’s that word (desperate) again. What does it mean?
Trump is nearing the end, not just of his career but of his wasted life. He is 74, and in failing health. None of his boasts and brags can conceal that fact from anyone, even a pathological liar who deceives everyone about death, so long as his own isn’t on the calendar.
He nearly died in October—remember? Regeneron gave him a reprieve, but it is bound to wear off, and he knows it, just as Mr. Carpenter (Michael Rennie) did–an actor with a Hobbesian message, launching a pre-emptive sermon against World War III, lest planet earth “be reduced to a burnt-out cinder” by a masterful slave disguised as a robot.[16] That was science fiction—the fact is, Trump’s days are numbered, not by counting UFOs but by taking his pulse. His next vaccine may well be his last. Trump doesn’t wear a mask, but his condition can’t be disguised for long. Bravado aside, mortality beckons—as he must dimly perceive, through the subliminal mist of coarse denials.
As befits a real estate man, Trump’s amoral maxim is “always be bluffing,”[17] whether at poker or power politics He is a mean businessman; only his fanatical followers truly mean business. Yet the more Trump blusters, the more he gives away the farm, before buying it. So do his doctors, whatever they may say on camera to protect their patient’s fragile ego. To bullshit or begin to rot—that is unquestionably Trump’s dilemma, even as he poses an existential threat to America.
A week ago, his mini-coup d’éclat nearly buried the American covenant beneath its own rusted sword. Had it succeeded, the mere pretense of democracy would have died instantly, and der Furor would no longer be an apprentice tyrant, but a master of his own and our unreal estate.[18] The plot was thwarted, leaving Trump to contemplate—if that is the right word—the one plot he can no longer postpone, except for a short spell. The Reaper is kind enough to stop, but his impatience is cruel, and surpasses Trump’s own. There are no sixth acts in this soap opera; no “comeback kids,” like pugnacious Bill Clinton; only the law’s delay in slowly avenging the fake 1040 form avengers.
Trump tried to cheat the hangman; inevitably, he will hang for it, not exactly as Robespierre was guillotined by the state Terror he himself authorized, but by the IRS code, and the vast disenchanted universe of tax fraud. The chief executor is confronted by a whole “squad” of executioners, whose last word is legally lethal.
He is too cowardly to commit political suicide; his fanatical followers did it for him, as a favor (not a quid pro quo, but a sacrifice, a gift, and an offering, like Abraham on Mount Moriah)[19] to their savior, that he might not flee in vain.[20]
Where do false Messiahs go when their time is up, and there are no more scapegoats left to sacrifice? If Trump resigned, even Pence wouldn’t pardon him, given their mutual betrayal tempered by Pence’s instinct for electoral survival.[21] Judas Iscariot took the silver and ran; Mike Pence will return to Indiana, a prodigal praying for his own resurrection in 2024 (when he turns 65) or at a later date, while he is still young enough to care. Even if Pence were willing to turn the other check-book and let bygone bribes, bullying and blackmail (respectively) be forgotten just for old crimes’ sake, Trump is too proud to accept help from an acolyte, let alone, owe him his future, such as it is. Y-h did not apologize to Job; instead, he told him (in so many profane words) to shut up and stop complaining, since that is the sole prerogative of the Almighty Boss,[22] if not his unearthly spouse.[23]
That is why only Trump can pardon himself, as Nixon tried to exonerate himself after the fact. That is also why Trump must be prohibited from doing so; indeed, to conceive the inconceivable is tantamount to proving its existence, as if The Donald were actus purus, not in jest but in dead earnest.[24] If he is, aseity will never live it down. Nor will we. That is why Trump must neither inflate nor emulate Nixon’s rhetorical example, while setting a bad precedent that Nixon never dared, except in bitter retrospect. Self-serving conduct is not just Trump’s style, it is his shady sinew, his vital organ, his quintessence of boom and bust. Hence his mission must be aborted in advance, as if to prove, not that God is dead, but that no one is God—not even God, as it turns out.
When the king is under check, he may not castle—so the rules of chess do state. Impeaching Trump serves a similar purpose, provided the impeachment papers are served in time, before Trump catches anyone off-guard, and makes his next move. Even that move is against the rules, but having two checks can’t hurt, especially at this moment, when the country has all but lost its balance, and Trump treats the system as his plaything, to be toyed with and then disposed of, like a child who is both bored and distracted, while in constantly soiling his crib, progressively more enraged.
Hunkered down in his bunker, the light grows dim, as Trump rages against it with all of his sound and fury, signifying everything that is missing from his warped soul. The clock is ticking; the pendulum chimes the hours, as Trump swings a golf club, imagining that it he is hitting one of his enemies as it strikes the ball. He has met the enemy countless times, but doesn’t recognize him, even as he walks through a long corridor lined with mirrors, like Louis XVI, or Charles Foster Kane.
So much for reflective awareness. In the republic of virtue, Republicans signal its complete absence. Why blame Trump for doing what comes all too naturally to both parties, as a by-product of the National Security State, which gives Presidents the license to destroy the world, without even asking for advice, let alone bipartisan consent?[25] Sleep doesn’t trouble him, for he lies awake, as he has always done, consciously or unconsciously.
Make no mistake, Trump is dying inside. He will not live to witness the triumph of Trumpism—but that is no consolation for us. On the contrary, it serves as a warning. In Brazil, the last conspirator died in a coma.[26] So did freedom. If we care to avoid that fate, putting Trump out of his misery will not avail; time will quickly take care of that.
But it won’t do us any more favors, unless we heed a subtle warning from an inaugural six decades ago: “here on earth, God’s work must truly be our own.”[27] Those words were profound without being pious. If anything, they were heretical, hence spiritual. God never helps those who help themselves: like Trump, he turned his back on us long ago.
Which leaves us alone in the wilderness, with no one to blame for being God-forsaken. Yet there is still hope, so long as we do not turn our backs on one another. Do not forsake me, O charming logos, lest pure chaos prevail, punctuated by sophistry, illusion, and silence.[28]
References:
[1] Laura Washington, “The Founding Fathers Never Thought A President Would Pardon Himself; They Didn’t Imagine Trump,” Chicago Sun-Times, Jan. 10, 2021. I assume that Ms. Washington is not directly related to the “father of our country,” but then, stranger things have happened.
[2] Gov. Chris Christie, ABC This Week, Jan. 10, 2021. Christie, who coached Trump for his debates against Biden, engaged in double-talk, saying “if incitement to insurrection isn’t [an impeachable offense] then I don’t know what it is,” only to qualify his judgment in the very next breath: “I will say too that the Democrats, by what they did earlier [at the first impeachment trial] on Ukraine, have kind of cheapened this a little, too.” (Parentheticals added). Gov Christie should know by now that you can’t have an election booth without paying the toll, no matter how much it costs.
[3] “The impeachment hoax is the continuation of the greatest and most vicious witch hunt in the history of our country, and is causing tremendous anger and division and pain, far greater than most people will understand.” “Trump in Texas says 25th Amendment is ‘of zero risk to me,’” CBS News, Jan. 13, 2021. Risks notwithstanding, Mr. Trump reveals far more about himself than he realizes, or will ever fathom.
[4] James Boswell, The Life of Samuel Johnson, LLD [1792], intro. Claude Rawson (New York, 1992), 748.
[5] “Lincoln Project’s Rick Wilson: Trump’s Life About to Become ‘A Burning Hell,’” Amanpour & Co., PBS-TV, Jan 8, 2021. Wilson also said that “everything Trump touches dies . . . everything that he has corrupted and reduced over the last four years . . . has come home to roost.” He deplored that “we have declined from the norms of American exceptionalism,” rather than seeing Trump’s hybris as its wishful fulfillment.
If King Midas didn’t get that, Malcolm X did.
[6] “Trump Tells Black Voters: ‘What the Hell Do You Have to Lose?’ While Detailing ‘Platinum Plan’ for Black Economic Empowerment,” BET News, Sept. 25, 2016. Trump reprised the line in running for re-election. See Matt Flegenheimer, “Trump’s ‘What Do You Have to Lose?’ Presidency is Rallying Again,” New York Times, June 20, 2020.
[7] Samuel Insull comes to mind, though there are few parallels between him and Donald Trump. Insull was smart and savvy; Trump is dumb and dense. Yet each gained the world, only to lose his shirt and end in ruin. Insull was more skimmed against than skimming; Trump was all con, coupled with pure hype. The only similarity is how things are bound to turn out. Once the books close, their wages will be identical.
See Leon Forrest, Insull: The Rise and Fall of a Billionaire Utility Tycoon (Washington, DC, 2004); John F. Wasik, The Merchant of Power: Sam Insull, Thomas Edison, and the Creation of the Modern Metropolis (New York, 2006). Ecclesiastes witnessed countless cases of self-incrimination, but tactfully kept quiet.
[8] “Trump . . . understands the allure of the idea that the correct answers aren’t that hard to come by. You’ve just got to sell them.” Chris Stirewalt, Every Man A King: A Short, Colorful History of American Populism (New York, 2018), 188. For once I agree. Taking a page from his fake receipt book, do we have a QED deal? If so, don’t bother trying to remove Trump from contention. He will do it himself.
[9] I suspect that Gov. Christie claimed it was “off the table” as a decoy, though in an earlier interview, he warned, with regard to the Mueller investigation, that “if the president were to pardon himself, he would be impeached” (ABC News This Week, June 3, 2018). That sounds reassuring, except for one small point: if any president were allowed to pardon himself, he could not be impeached. That is precisely why no president is [or should be] allowed to do it, and no Pooh-Bah worthy of the name, except in Titipu.
[10] Not surprisingly, Richard Hofstadter’s classic essays on that topic have just been canonized by the Library of America Anti-Intellectualism in American Life, The Paranoid Style in American Politics, Uncollected Essays 1956-1965, Sean Wilentz (New York, 2020). They are as relevant as today’s tweets.
[11] Sean Illing, “President Trump is considering pardoning himself. I asked 15 experts if that’s legal” vox.com, July 21, 2017; updated Jan. 7, 2021. Illing reported that this was a “gray area,” that it was “strangely murky,” and that the answer was “not clear.” Apparently, it still isn’t, although Rudy Guiliani was the first to say (in 2016) that while the President could pardon himself, doing so was “unthinkable.” Since he just thought of it, that takes care of that—and, indirectly, of us.
[12] U.S. Constitution, Art. I, Sect. 3, clause [7]; Art. III, Sect. 2, clause [3].
[13] “The word itself derives from a Latin root used to refer to being caught or entrapped. The dictionary definition is the process by which a legislative body formally charges a high-ranking official with misconduct” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know (New York, 2018), 6. Even this is a trifle slipshod, since the process does not begin until the charge is lodged, whether by vote, unanimous consent, or some other means. Without a warrant, you can’t legally arrest someone. Issuing the warrant initiates the procedure. Whereas, a vote not to try someone for impeachment is not an acquittal, but a dismissal of the charges, in all but name. Gerhardt rightly observes that the context of utterances determines the meaning of the word in a given context. What the Framers meant is tantamount to serving a sub poena once the indictment is made, and everything that occurs thereafter.
[14] For such expertise, see Jaroslav Pelikan, Interpreting the Bible and the Constitution (New Haven, CT, 2004).
[15] Cf, Harry Frankfurt, On Bullshit (Princeton, NJ, 2005). Unfortunately, Frankfurt doesn’t examine his own bullshit (of which there is plenty), thus making him less than Socratic in his arrogant ignorance. Don’t say I didn’t warn myself.
[16] The Day the Earth Stood Still (1947, dir. Robert Wise).
[17] Cf. David Mamet, Glengarry Glen Ross (play, 1984; film, 1992, dir. James Foley). By karmic coincidence, Alec Baldwin, for whom the film adaptation created an important role, became a leading Trump impersonator on Saturday Night Live.
[18] Like Adolf Hitler, Trump did not participate in what internet wits have dubbed “the Beer Gut Putsch.” He may be bluffing; but his minions lack guile to make suppression better. Hitler couldn’t stand the sight of blood. Trump is a last responder, in keeping with his sly transvaluation of all diabolical values.
[19] Genesis 23. As Kierkegaard insisted, religious altruism of that sort is indistinguishable from raving insanity. The only difference between the knight of faith and the deranged fool is that the former always travels incognito, while the latter creates a huge spectacle. Cf. Søren Kierkegaard, Fear and Trembling [1843], ed. C. Stephen Evans and Sylvia Walsh (New York, 2006). Whether that consoled Isaac is another Biblical story.
[20] Cf. David Paul Kuhn, The Hardhat Riot: Nixon, New York City, and the Dawn of the White Working-Class Revolution (New York, 2020). Earlier studies: Dan T. Carter, The Politics of Rage: George Wallace, The Origins of the New Conservatism, and the Transformation of American Politics [1995], 2nd ed. (Baton Rouge, LA, 2000) Rick Perlstein, Nixonland: The Rise of a President and the Fracturing of America (New York, 2008), and, from a different angle, Michael Rogin, Ronald Reagan The Movie, and Other Episodes in Political Demonology (Berkeley, CA, 1987). The “cult of personality” once associated with Stalin, Castro and Mao Zedong is twice as dangerous in the United States as it is anywhere else, because our national mythology is both democratic and messianic, which makes us believe that it can’t happen here, even as it unfolds right before our incredulous eyes. Alas, the last, best hope of earth is the shotgun marriage of heaven and hell.
[21] Peter Baker, Maggie Haberman, and Annie Karni, “Mike Pence Reached His Limit with Trump. It Wasn’t Pretty,” New York Times, Jan 12, 2021. I am only astonished that Pence had a limit.
[22] Job 36-39. For commentary, see Robert Gordis, The Book of Job (New York, 1978), esp. 412-34, 442-65, and William Safire, The First Dissident: The Book of Job in Today’s Politics (New York, 1992). My reading of the Old Testament is that God is indeed the Godfather.
[23] Ron Dicker, “Melania Trump Makes Herself The Victim In Statement On Capitol Attack,” Huff Post, Jan. 11, 2021. Melania does not take a back pew to any self-appointed deity.
[24] The Education of Henry Adams [1905]; repr. Ernest Samuels and Jayne N. Samuels (eds.), Henry Adams: Novels Mont Saint Michel The Education (New York, 1983), Ch. XXVIII, 1101. If Adams came back to life, he could not behold the world without a shudder (ibid., 1181). Can you? Can anyone, besides Trump? If so, you’re in deep trouble.
[25] Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston, 1973); Garry Wills, Bomb Power (New York, 2010). Trump’s flagrant disregard for the rules of the parliamentary game show, not merely that he is brazen and boorish, but that the withering of the democratic state is a problem whose roots run far deeper than Trump himself. If this is the new abnormal, then don’t kid yourself about what lies in store, with or without Dr. Strangelove to mastermind it. A day after the aborted insurrection, Nancy Pelosi intervened to stop Trump from loving the Bomb (cf, Ebony Bowden, “Pelosi calls Gen. Milley to block ‘unhinged’ Trump from using nuclear codes,” New York Post, Jan. 8, 2021). No doubt she was grandstanding. But what if Trump decided to make his last stand, while scribbling post-it notes from underground? Calling Trump a monster begs the question. We have met the Frankenstein, and he is us. One way or another, Trump will go. But who will stay, and make sure that none of us go? There’s the bureaucratic rub.
[26] Brazil (1985, dir. Terry Gilliam). The film is dystopic; its subtext is the U.K. under Thatcher. Yet its Orwellian prophecies fit every repressive context and ‘post-modem’ amoral climate.
[27] John F. Kennedy, “The Inaugural Address,” January 20, 1961, repr. Theodore C. Sorensen (ed.), Let the Word Go Forth: The Speeches, Statements, and Writings of John F. Kennedy, 1947 to 1963 (New York, 1988), 15. Sorensen wrote that address, as he did nearly all of Kennedy’s major and most memorable speeches. His ghost still haunts the White House, seeking the author of his non-being.
[28] My thanks to C.J. Thom, III, Rob Cerello and Henry Gonzalez for their comments, criticisms and intellectual companionship. The trinity is holy, despite the frailty of the One.
A native New Yorker, Dennis Rohatyn took his PhD at Fordham. He moved to the West Coast in 1977. His works include “Out of My Mind,” “The Flight of Theory”, and “Cartesian Requiem.” He writes about everything, but his true vocation is the inhuman condition.
Image: PAM illustration
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