Monday, August 28, 2017

The Pardon Power

     In Tom Kratman’s chilling novel Caliphate, he describes – interstitially, which is an interesting way of injecting important backstory data into a narrative – the use of the president’s pardon power to legalize assassination. The president at issue was elected in the wake of a nuclear attack by Islamists on three American cities, and is, shall we say, a bit impatient with restraint. He uses the pardon power to immunize those who kill his political enemies and other obstructors to his agenda. Indeed, at one point he effectively pre-announces pardons for persons who would do so, even though the murders haven’t yet occurred:

     In addition to the camps for males and females, President Buckman also opened camps for the political opposition, such as it was, though these were integrated. No particular effort was made to fill these camps. Instead, the administration published lengthy lists of people it considered enemies of the state. The camps were declared to be “safe zones,” where those same people would be protected from the anger of the masses.
     Implicitly, of course, Buckman was saying, “Outside of these camps, you will be murdered and we both know you will because I will pardon your killers. Inside, we will keep you alive. Or, of course, you could leave the country. And good riddance.”

     Kratman describes this in such matter-of-fact terms that one might as well be reading a newspaper account. It makes the idea all the more chilling. And while it would clearly be a moral abuse of the presidential pardon power, it would not, by a strict reading of the Constitution, be a legal one.

     Given that blatant moral abuses of the pardon power have occurred within recent memory – Bill Clinton pardoned fugitive financier Marc Rich, under multiple felony indictments, after allegedly receiving “considerations of value” from Rich’s ex-wife Denise – the subject is worthy of serious thought.

     These days, refusals by “authority” to enforce the law as it stands are too common to bear enumeration. Despite the municipal statute against going in public with one’s face and identity concealed, the Charlottesville, VA police declined to enforce the law against Antifa. New York sheriffs are virtually unanimous in refusing to enforce Andrew Cuomo’s unConstitutional SAFE Act. Barack Hussein Obama explicitly directed the IRS not to enforce portions of the Patient Protection and Affordable Care Act (a.k.a. ObamaCare) that he found politically inconvenient. You’d almost imagine that “the law” is a set of optional guidelines “law enforcement” is preauthorized to ignore when it pleases.

     The consequences have been disastrous for Americans’ respect for the law. When the authorities are tacitly empowered to ignore the law at their discretion, what replaces the law is human opinion: the rule not of laws but of men. I’ve made my opinion of that nightmare plain:

     “Why are you so...fixated on the Constitution, Mr. Sumner? Isn’t it a little bit naive to think a document two centuries old contains all the answers to the problems of a complex modern society?”
     “Have you read it, Miss Weatherly?” Sumner’s voice remained mild.
     “Not lately, no.”
     “Then you might have forgotten that it’s the supreme law of the land. All other law and all government action must conform to it. If it needs to be revised or expanded, it contains provisions for that.”
     “A lot of people would say,” Weatherly cooed, “that we’ve done that, only informally.”
     Sumner pursed his lips and glanced down at his shoes. For a moment, Weatherly thought she might finally have scored against his infuriating self-assurance.
     “Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
     “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
     “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
     “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.
     “Washington was against it. Jefferson was against it. Jackson was against it. All of these men rose to the office of president. I am against it, and I seek the same office. The rest is for the voters to decide.”

     The abuse of “interpretation,” “prosecutorial discretion,” “judicial review,” and other mechanisms to subvert the plain meaning and impact of duly enacted laws has gone so far that there is no longer a “rule of law” in these United States. Harvey Silverglate made a considerable point of this in his book Three Felonies A Day. The malady may be uncorrectable...which makes what follows in this tirade too ironic for the self-respecting citizens of a supposedly Constitutional republic to bear.

     Three days ago, President Trump pardoned former Maricopa County, AZ sheriff Joe Arpaio. Arpaio had been “convicted,” by a judge rather than a jury, of “criminal contempt.” Contempt for what? A court order that forbade him to arrest suspected illegal aliens. But illegal aliens are lawbreakers under explicit federal laws concerning immigration, ports of entry, and permissible residence in the U.S. So Arpaio had been “convicted” of the “crime” of enforcing federal law.

     For President Trump to pardon Joe Arpaio was a pure act in the defense of the rule of law – in other words, a defense of justice against tyranny. Yet he’s been assailed from one end of the political spectrum to the other for that pardon. Why?

     For the life of me, I can’t imagine it. For that matter, where on Earth would a judge of any level whatsoever find the authority for ordering a law enforcement officer not to enforce the law? A county sheriff has the same duty and authority to enforce the law as any other LEO, be the law local, municipal, state, or federal. Moreover, Sheriff Joe was supremely admired for his determination that the illegal-alien laws should be enforced in his demesne – a portion of Arizona badly beset by illegals and the crimes they facilitate.

     Quoth the redoubtable Mike Hendrix:

     Contrary to a whole passel of hysterical psychotics, Trump was more than just within his rights as President to pardon the man; in truth, he HAD to do it, lest the entire idea of justice and the rule of law be forever dismissible as no more than a bitter joke. Good for him for standing up to the monstrous tyrants of the PC Left once again. And hats off to Sheriff Joe for standing firm under the never-ending onslaught of these despicable cretins, from their jug-eared-moron Savior on down.

     I enthusiastically second this from first syllable to last – and they who seek to deny that objective, easily comprehensible and enforceable law exists because it would inconvenience them to admit it should be among our first targets for removal from any office of public trust.

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