Seth Barrett
Tillman, Lecturer
Maynooth University
Department of Law
May 19, 2020
National Review
Online: The Corner
Letter to the Editor
letters@nationalreview.com
RE: Andrew C. McCarthy, An Answer for Ramesh, National
Review: The Corner (May 19, 2020, 11:51 AM), <https://www.nationalreview.com/corner/an-answer-for-ramesh/>.
Andrew McCarthy
wrote:
If Senator Romney
were to say, ‘A president cannot pardon all of his cronies who are suspected of
crimes,’ he’d be wrong. If [Romney] were instead to say, ‘A president who
pardons all such cronies grossly abuses his powers, and that Congress should
block him until he desists and impeach him if he doesn’t,’ that’s a perfectly
reasonable argument—and if the president suffers politically as a result,
that’s what’s supposed to happen.
Who is or who isn’t
a “crony” is the sort of contestable political view which is the subject of
elections, not impeachments—that’s particularly true because our Constitution
protects political association. The President abuses his pardon power when
he exercises it in exchange for a boatload of cash, which he proceeds to hide
in his closet, and then fails to disclose it to the public (and to the tax
man). That’s a bribe. Short of that, his exercising the pardon power
is just contestable politics. Too often, the issue of who is a “crony” and what
is “abuse” are just political opinions and lawfare masked as statecraft. To
make a President’s term of office wholly dependent on what his political
opponents see as “abuse” is to render the President dependent on Congress—and
that is not and has never been how our government was organized.
One other point. The President’s opponents (and, regrettably, some others) consistently frame the issue in terms of whether the President can be impeached for anything but a statutory violation of the criminal code. Once they conclude that the President can be impeached for some wrongs which are not statutory violations, they then proceed to argue that any non-crime based on any difference of political opinion amounts to impeachable abuse of office or abuse of powers. The proponents of this view, i.e., that the President can be impeached for “abuse” of office or for “abuse” of his powers, never actually get around to explaining what “abuse” is—what are its elements—and what defenses (if any) are applicable. See, e.g., Kelly v. United States, No. 18-1059, 2020 WL 2200833, 140 S. Ct. 1565 (May 7, 2020) (Kagan, J., for a unanimous court) (discussing abuse of power in dicta), <https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf>.
The reality is that that “abuse” of office or “abuse” of powers, as it has been pitched to the public, amounts to an Orwellian thought crime—which seeks to overturn an election based on wrong think and mundane disagreements about policy, which, in normal times, would be the subject of elections, not impeachments (and not a process of recasting political differences as accusations of legal wrongdoing, with concomitant investigations, and threats of prosecution).
One other point. The President’s opponents (and, regrettably, some others) consistently frame the issue in terms of whether the President can be impeached for anything but a statutory violation of the criminal code. Once they conclude that the President can be impeached for some wrongs which are not statutory violations, they then proceed to argue that any non-crime based on any difference of political opinion amounts to impeachable abuse of office or abuse of powers. The proponents of this view, i.e., that the President can be impeached for “abuse” of office or for “abuse” of his powers, never actually get around to explaining what “abuse” is—what are its elements—and what defenses (if any) are applicable. See, e.g., Kelly v. United States, No. 18-1059, 2020 WL 2200833, 140 S. Ct. 1565 (May 7, 2020) (Kagan, J., for a unanimous court) (discussing abuse of power in dicta), <https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf>.
The reality is that that “abuse” of office or “abuse” of powers, as it has been pitched to the public, amounts to an Orwellian thought crime—which seeks to overturn an election based on wrong think and mundane disagreements about policy, which, in normal times, would be the subject of elections, not impeachments (and not a process of recasting political differences as accusations of legal wrongdoing, with concomitant investigations, and threats of prosecution).
Seth
Seth Barrett Tillman, Submitted as a Letter to the Editor at National Review Online: The Corner, When Does the President “Abuse” the Pardon Power?, New Reform Club (May 19, 2020, 12:36 PM), <https://reformclub.blogspot.com/2020/05/when-does-president-abuse-pardon-power.html>.
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