For most of its history, the United States had a ruling majority. But during the late 20th Century, that White caste divided into two groups, which I’ll call Metropolitan Whites and Heartland Whites. They have different interests, so they no longer cooperate, which means each is effectively a large minority. Both benefit from the economic and political advantages of White skin, but the Metropolitan Whites rely on White privilege less because they’re wealthier and more plugged-in to the new economy. That frees them to ally with non-Whites.
The Constitution says nothing specific about whether Congress can impeach an official after his or her term. That didn’t stop the House of Representatives from impeaching the Secretary of War in 1876, after he left office — or the Senate from trying him. And history tells us Congress got it right that year, just as they apparently will again in 2021. The Framers based the impeachment process on the English Parliament’s power to impeach. And English impeachments could start after the official left office. In fact, Parliament impeached an official named Warren Hastings in 1787 and tried him between 1788 and 1795 — though he left office in 1784. The Hastings impeachment battle raged while the Framers wrote the Constitution, and it played a central role in their thinking.
The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”
The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.
Continue reading “History Tells Us the President Cannot “Self-Pardon””
by David W. Tollen and guest contributor Robert W. Tollen
Many commentators assume the new House of Representatives would choose the President after a challenged election — with each state’s delegation casting a single vote. Others say the Supreme Court would decide. Each scenario gives Republicans an advantage, since they’ll probably control more state delegations, despite their overall minority in the House, and they appointed most of the Justices. But in fact, neither scenario is likely, and the commentators focused on them misunderstand the law. State governments resolve disputes about their voters’ presidential electors, under state law. And the new Congress rules on challenges to those decisions in the normal way, with each house voting by simple majority.
The Unlikely Case of a Tie or Plurality in the Electoral College
When does the House of Representatives choose the President, voting by state? Only when no candidate gets a majority of the electors, per the rules in the Twelfth Amendment.
In a second term, the ballot box would no longer restrict Trump. So we can expect:
- Expanded use of the Department of Justice (DoJ) against the President’s opponents, including members of Congress.
- More use of force against protesters.
- Federal tolerance of crime against the President’s opponents (e.g., Michigan’s governor).
- Refusal of federal disaster funds and other resources for blue states.
- Further suppression of information on Covid-19’s nationwide impact.
- Prompt firing of senior officials and federal prosecutors who try to restrain the President.
- White House orders blocking DoJ prosecution of the President’s allies.
- More separation of children from immigrant parents.
- Withdrawal of federal resources aimed at curbing White supremacists.
- Federal support for attacks on the voting process, particularly in swing states, probably leading to “disqualification” of large numbers of ballots and voters in 2022 and 2024.
Calls to abolish or massively reform America’s police sound new and radical. Yet history offers a very old model for those reforms: an alternative to our current military style of policing. In the world of the Founding Fathers, civilian constables enforced the law. They had done so for 150 years in the American colonies — and for longer in England. And they would continue well into the 19th Century.
Here’s a prediction. As Benedict Arnold has come to mean treason to Americans, Donald Trump will someday mean corruption. And politicians who support him will be painted by the same brush.