Pardons, the Law, and America’s Future

The United States of America sprung full grown from the Enlightenment as a nation-state like Athena from the mind of Zeus. It became a nation without going through the complexities of the European nation-states, which grew through feudal and class systems under aristocracies and absolute rulers to form modern states. America’s ideological foundation is firmly centered on the idea of the supremacy of ideas and ideals – primarily the idea of the nation as a system of laws and legally-established structures.

Intellectuals driving the ideology of the Trump movement (people like Steve Bannon) believe that the US is held together by white, Anglo-Saxon, and Judeo-Christian values. They are terribly wrong. They have misread the diversity of America as a weakness, or as a threat to the life of the nation. In the United States there has been diversity for much of the history of the nation, and fears that immigration from Latin America threatens the values and cohesiveness of the nation are histrionic. Without the concepts of justice and limited government, there is nothing to hold the nation from spinning apart.

Trump has consistently played to his base, and his pardon of Joe Arpaio is no different – many politicians and presidents over the history of the United States have played to their key supporters. But this is different than previous pardons and pandering. In several key ways the pardon undermines the rule of law.

Firstly, Joe Arpaio is a key political supporter of President Trump, especially on the divisive issue of immigration. Pardoning any key political supporter convicted of ignoring a federal court order is weighted with undermining the impartiality of the justice system. By doing this Trump is essentially placing political allegiance above the law and the separation of powers.

Secondly, the specific crime which Joe Arpaio was convicted for violating was a court order. “America’s toughest sheriff” flaunted the judiciary’s authority to determine whether or not his actions were constitutional. So the pardon was a direct challenge to the constitutional position of the judiciary, one of the three pillars of balanced government.

Thirdly, Joe Arpaio was pardoned without going through the normal legal process. Normally pardons are issued after a person has been sentenced and after they have appealed to the president to be pardoned. Furthermore, the individuals are normally pardoned in the interests of justice.

A key argument of Trump supporters is one of equivalency. This is an argument used with consistency by those supporting Donald Trump, and it is a dangerous form of sophistry. False equivalency blurs obvious moral and legal boundaries. In philosophical logic this is known as the “tu quoque” fallacy. Rather than addressing the logic of the argument presented against them, in this case “President Trump used his power to pardon to undermine the separation of powers and the ‘rule of law,'” supporters of the President will respond: “where was the outrage when Obama pardoned thugs and criminals?”

To address this fallacious argument it is instructive to examine some of the most controversial pardons and acts of clemency in recent American history. The first one that comes to mind is the pardon of Richard Nixon. Richard Nixon, embroiled in the Watergate Scandal and forced to resign the presidency, was pardoned by President Gerald Ford shortly after he took office. Because Nixon had so poisoned the public perception of the Republican Party and the reasons for pardoning him were for the interest of the nation, it has generally been excused and vindicated by historians and politicians. This act, though enormously controversial at the time, was not made to a political supporter, and could not have been made for any feasible reason besides to move the nation past the tragedy of Nixon’s presidency. There was no personal loyalty, quid pro quo, or undermining of the law – the outcome of Nixon resigning the office and the implication of guilt were more in the public’s interest than his conviction in a trial.

Faction and partisanship have always been a threat to democracy and good government in America. Our Founding Fathers were concerned about the establishment of political parties and their ability to undermine the principals of republican government. Instead of ruining the government however, parties throughout the history of the United States have tended to operate within general bounds of fairness and legality, and as institutions have helped to channel a diverse and dissimilar population into orderly groups that can fight for general political principles. Several times the political parties have broken down, most catastrophically before the Civil War, where the regional demands on a single government became so great that the country was torn in half. Recently the rise of Donald Trump both displayed the weaknesses in the modern Republican and Democratic parties, and then tore them to shreds. Without the political parties channeling differences into governmental policy and actions the United States is left with the aimless politics of the dynamic politicians who rise to the top. In this case we have Donald Trump – not attempting to placate a political party who is willing to work within governmental structures, but appealing directly to his loyal, self-made political base of disaffected white Americans. Without a tradition, understanding, or respect for the government and law, he appeals directly to this political base. This is how democracy is undermined in America: it is done by breaking down the legal and heuristic edifices that keep the passions of people channeled and within recognized bounds of justice and fairness. Donald Trump doesn’t need to abolish the Constitution or rule by fiat to crack the United States of America’s foundations of individual liberty, limited government, and sharing of power.

The threat Trump poses is beyond the scope of contemporary conservative or liberal issues, he is his own class of threat. It started with denigration of the media – this allowed his supporters to feel that Trump was being misrepresented and victimized no matter his actions or words – making him nearly immune from criticism from his new political base; it was followed by the destruction of the coalitions that made the political parties (which they themselves are largely responsible for by growing so far from the people and interests they purport to represent); and now has moved on to the elevation of his political views over the laws of the nation.

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