Biden Urged to Offset Trump's Legacy in U.S. Courts

          President Joe Biden has worked hard during his first ten days in the White House to undo major parts of the poisonous legacy that Donald Trump left behind by, for example, repealing Trump’s ban on transgender military service members and repealing the travel ban that Trump instituted against predominantly Muslim countries in his first weeks in office.

            Biden faces daunting obstacles, however, in undoing Trump’s most lasting legacy: the appointment of more than 225 judges at all levels of the federal judiciary, including three Supreme Court justices, nearly one-third of the judges on federal courts of appeals, and almost one-fourth of the country’s federal district court judges.

            Those life-tenured judges—several of them appointed in their 30s and many appointed in their 40s—will serve through Biden’s presidency even if he is re-elected to a second term and perhaps even past the mid-century mark in 2050. To counter their influence and the obstacles Trump judges might pose to Biden’s policies, Biden is turning to a familiar Washington device: a special commission on court reform staffed by the White House and reporting directly to the White House.

            Some of the commission’s members have been selected, according to an article in Politico by reporter Tyler Pager, but its mandate remains uncertain. Before his election, Biden was noncommittal on one step favored by liberal and progressive groups: expanding the number of justices on the Supreme Court to offset the ideological shift resulting from Trump’s three right-wing appointments to the nine-justice bench in his single term as president.

            Meanwhile, without addressing Supreme Court expansion, more than 70 liberal and progressive groups have joined in a “statement of principles” drafted by the Alliance for Justice that urges Biden to support legislation creating new judgeships, to fill existing vacancies “expeditiously” with demographically and professionally diverse nominees, and to fast-track nominations through the Senate just as Republicans did during Trump’s presidency

            Trump’s success in transforming the federal judiciary was a political coup of sorts, many years in the making, thanks to tactics by the Senate’s Republican leader, Kentucky’s Mitch McConnell, in slowing President Obama’s ability to fill federal judgeships and expediting confirmation of Trump’s nominees. Thanks to McConnell’s tactics, Trump was greeted with more than 100 judicial vacancies in his first weeks in office. By contrast, Biden now has around 50 vacancies to fill, including three retirements announced since he took office.

            Obama, elected twice with a majority of the popular vote, appointed 311 federal judges in eight years in the White House, compared to 226 for Trump in four years. With a Republican majority, McConnell all but shut down Senate confirmations of Obama nominees in the Democratic president’s last two years in office. Most famously, McConnell refused during the 2016 presidential campaign to convene a hearing on Obama’s nomination of federal appeals court judge Merrick Garland to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.

            Earlier in Obama’s presidency, the Democratic-majority Senate had confirmed his two Supreme Court appointees, Sonia Sotomayor and Elena Kagan, with more than 60 votes for each. By contrast, Trump’s three Supreme Court appointees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were all confirmed with fewer than 60 votes in the 100-vote Senate. Barrett was confirmed in October 2020 by a party-line 52-48 vote: she became the first Supreme Court nominee in more than a century to be confirmed without a single vote from a senator of the opposing party since Stanley Matthews’ 24-23 confirmation in 1881.

            Trump reversed the advances that his three previous predecessors – Obama, George W. Bush, and Bill Clinton – had made in diversifying the federal judiciary, according to a compilation by John Gramlich, a senior writer with Pew Research. Out of 226 Trump judges, only 37 – or 16 percent -- were non-white: nine blacks, nine Hispanics, 13 Asians, and six “other.” More than one-third of Obama’s judges – 115 out of 320 or 36 percent – were nonwhite. Bush named 58 non-white judges out of a total of 264, or 18 percent. Clinton named 90 nonwhite judges out of 367, or 25 percent.

            With Trump still in the White House, his judges were having a definite impact in closely divided cases in federal courts, according to a compilation by the progressive advocacy group People for the American Way. Five Trump appointees on the Eleventh U.S. Circuit Court of Appeals provided most of the votes in a 6-5 decision that upheld a Florida measure blocking ex-felons from regaining the right to vote. Trump judges voted in other cases to limit voting rights: notably, Gorsuch and Kavanaugh cast decisive votes in a 5-4 decision that prevented Wisconsin from extending the deadline for counting absentee ballots in the state’s primary elections and in a later 5-3 decision that barred curbside voting for disabled and elderly voters in Alabama.

            With Biden now in the White House, a Trump-appointed judge acted in a lawsuit filed by the state of Texas to block Biden’s plan to pause deportations for 100 days at the southern border. U.S. District Court Judge Drew Tipton, on the bench for only six months, issued a nationwide injunction on Jan. 28 to block the Biden plan. The Republican politicians who complained during Trump’s presidency that district court judges have no authority to issue nationwide injunctions raised no concerns about this one.

In the meantime, Biden’s only opportunity to counter Trump’s influence on the federal judiciary depends on court expansion, according to one leading advocate. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts,” Aaron Belkin, director of Take Back the Court, remarked to the Politico reporter. “We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”

 

 

Unity Elusive Despite Biden's Plea at Inauguration

        What a difference four years can make! Four years ago, Donald Trump painted a dark and foreboding picture of American carnage in a divisive inaugural address filled with falsehoods and exaggerations. The conservative columnist George Will called it “the most dreadful” inaugural address in history, as I noted in a critical orders at the time.

Four years later, Joe Biden was upbeat and resolute last week [Jan. 20] as he appealed in a widely admired inaugural address for unity in confronting the “cascading crises” facing the country as he assumes the presidency for the next four years. My college classmate Chris Wallace used his Fox News anchor desk position to call it the best of the inaugural addresses he has witnessed since John Kennedy’s in 1961.

 “We must end this uncivil war that pits red against blue, rural versus urban, conservative versus liberal,” Biden said, halfway through his 22-minute address. “We can do this if we open our souls instead of hardening our hearts.”

After winning the most votes ever by a presidential candidate, Joe Biden looked out at a National Mall filled not with cheering crowds but with nearly 200,000 American flags symbolizing the 400,000 Americans lost to the coronavirus pandemic on Trump’s lackadaisical watch. Trump left town without accepting responsibility or expressing regret for the deaths.

In contrast, Biden used what he called his first act as president to  “ask for a moment of silent prayer to remember all those we lost this past year to the pandemic.” After a pause, he followed with a pledge “to honor them by becoming the people and nation we know we can and should be.”

Biden acknowledged, as he had to, the scene two weeks earlier when “violence sought to shake this Capitol’s very foundation.” He left unspoken the extreme security precautions put in place to guard against a recurrence: the unprecedented closing of the National Mall to Inauguration Day crowds and the deployment of more than 20,000 National Guardsmen throughout the capital city.

On Fox News, opinion hosts Tucker Carlson and Sean Hannity conveniently skipped over the deaths that resulted from the Trump supporters’ Jan. 6 insurrection at the Capitol and instead depicted the security precautions as aimed only at silencing dissent.  In his address, however, Biden singled out “the rise of political extremism, white supremacy,  domestic terrorism” as a security threat that “we must confront and will defeat.”

 On the issues, Biden laid out an agenda in stark contrast to Trump’s “Make America Great Again” and instead promised not only “greatness” but also “goodness.” He promised to gain global prestige not by “the example of our power” but by “the power of our example.”

“With unity, we can do great things. Important things,” Biden declared, listing them one by one. “We can right wrongs. We can put people to work in good jobs. We can teach our children in safe schools. We can overcome this deadly virus. We can reward work, rebuild the middle class, and make health care secure for all. We can deliver racial justice. We can make America, once again, the leading force for good in the world.”

Biden skipped over the partisan divisions that hampered those goals during the year of the pandemic: the armed resistance from Trump supporters to mask mandates and the White House’s political posturing over closing schools to limit the spread of the virus. He listed, without directly blaming Trump, the economic disasters of the pandemic: “millions of jobs lost,” “hundreds of thousands of businesses closed.”

Biden listed as well other challenges that Trump had left unaddressed in four years in the White House. “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer,” he vowed. Trump had been all but silent as the Black Lives Matter movement stepped up pressure to reform police use-of-force policies.

Next, Biden turned to climate change: “A cry for survival comes from the planet itself. A cry that can’t be any more desperate or any more clear.” However clear the problem may have been, Trump installed in key positions climate-change deniers and, in fact, banned the term from government publications. He started his administration by ostentatiously withdrawing from the Paris climate agreement, even while the United States was lagging on the pact’s goals for reducing greenhouse gas emissions.

With the inaugural ceremonies over, Biden got down to work quickly with a flurry of executive orders that, for example, halted further work on Trump’s border wall and reversed Trump’s travel ban targeting mostly Muslim countries. He also mandated mask-wearing on all federal properties and most public transportation, instituted an array of other steps to speed up vaccinations, and called on federal agencies to develop policies to limit the spread of the virus in schools and workplaces.

Other steps in his first days included personnel moves: ousting the veteran union buster as general counsel of the National Labor Relations Board and kicking out the Trump propagandist as director of the Voice of American (VOA). Meanwhile, the Senate was moving only slowly on Biden’s Cabinet nominees, stymied in part by Minority Leader Mitch McConnell’s stiff-necked negotiating stance on power-sharing in the 50-50 Senate. For McConnell, it seems, Biden’s appeal for unity fell on deaf ears.

Capitol Riot Fits History of White Mob Violence

          Hundreds of President Trump’s supporters were rampaging inside the U.S. Capitol on Wednesday, Jan. 6, as Trump’s eldest, Donald Jr., went on to Twitter belatedly to plead with the mob to avoid violence. “This is wrong and not who we are,” Junior tweeted as noted in this account. “Be peaceful and use your 1^st Amendment rights, but don’t start acting like the other side.”

            Ten days later, thousands of National Guardsmen are deployed in the nation’s capital this weekend in an effort to safeguard President Joe Biden’s inauguration on Wednesday [Jan. 20] against a recurrence by another pro-Trump mob.

            Junior’s “not who we are” tweet could be understood as referring specifically to his father’s campaign and presidency or, more broadly, to “who we are” as Americans. In either case, he was demonstrably incorrect, as seen in Trump’s conduct as candidate and president and in the long history of white mob violence in the United States.

 Violence and the threat of violence were part of his father’s campaign from the outset and into his presidency, as seen for example when Trump urged supporters at a campaign rally in Iowa in January 2016 to “knock the crap” out of any hecklers.  Trump went on then, and in later rallies, to promise to pay legal fees of any supporters who ended up facing charges for assaulting dissidents.

Junior’s tweet, interpreted more broadly, was also demonstrably incorrect as a matter of American history. In fact, white mob violence in aid of white supremacy has been a recurrent pattern in U.S. history from the slavery era through the post-Civil War Reconstruction and through the 20^th century civil rights movement.  In the words of the late 20^th century song, Junior “don’t know much about history.”

Here, then, a refresher: the post-Civil War Reconstruction suffered its greatest single setback when white insurrectionists took up arms against the biracial government in majority-black Grant Parish, Louisiana, on Easter Sunday, April 13, 1873. A white mob attacked the parish courthouse  in the Red River Valley town of Colfax in an armed shootout with black Republicans barricaded inside that eventually forced the outnumbered blacks to surrender.

The event is marked by a historical marker erected in 1951 that describes the Colfax Riot as marking the end of “carpetbagger misrule” in the South. An estimated 150 blacks were killed in the episode, many of them execution-style after they had surrendered. Three whites were killed: their deaths are memorialized in an obelisk that stands outside the courthouse and praises them for having died while fighting in defense of “white supremacy.”

            The historian Eric Foner, in an interview with the writer Isaac Chotiner in The New Yorker, saw a parallel between the history of white supremacy violence during the Reconstruction and the Capitol riot more than a century later. “It’s not unprecedented that violent racists try to overturn democratic elections,” Foner remarked, after recalling similar riots that displaced biracial governments in New Orleans in 1874 and in Wilmington, N.C., in 1898.

            The Capitol riot needs to be understood in the same context, Foner explained in the interview. “It was not a fly-by-night operation,” Foner said. “ It was not a misguided group who got a little out of hand or something like that. It was really an attempt to completely subvert the democratic process by violence.”
            The Reconstruction-era white mobs believed that blacks “were incapable of taking part intelligently in a democratic government,” according to Foner, and for that reason believed that they were restoring honest and responsible government by ousting black officeholders and their carpetbagger allies. Foner, a professor at Columbia University and author of Reconstruction: America’s Unfinished Revolution 1863-1877, recalls in the interview that high school history classes through the 1960s taught Reconstruction in negative terms consistent with the white supremacist critique of the era

Foner links Trump’s “birtherism” attack on Obama’s legitimacy as president to the same philosophy: “straight-out white supremacy.”  Trump “was pushing the idea that Obama was not really an American and, therefore, could not be president,” Foner recalled. “The idea that Black people are actually aliens in a certain way – that they are not truly American, that the only true Americans are white – that’s been around for a long time in our history.”

            Foner’s narrative in effect forces us to view the Capitol riot through a racial lens. The mob was not only predominantly white but almost exclusively white, despite the role of one black Trump supporter in helping organize the event. But just as in the 19^th century, the white mob was trying to prevent the election of a distinctively biracial government, with a woman of color as vice president and a racially and ethnically diverse Cabinet.

            The Biden-Harris ticket won the support of more than 90 percent of the nation’s black and brown voters, according to post-election exit polls. The Biden victories that Trump’s supporters were challenged including four states – Georgia, Michigan, Pennsylvania, and Wisconsin – where black voters in major cities were critical in flipping the results from the 2016 election.

            Trump carried the majority of the white vote in 2020, according to exit polls, just as he had done in 2016. But a majority of the white vote left Trump more than 7 million votes behind Biden in the overall popular vote.  Trump, it must be remembered, incited the mob to march to the Capitol by saying that they needed to “show strength” to reclaim the country. “You’ll never take back our country with weakness,” Trump said.

Trump Must Be Removed From Office: Now!

            President Trump must be removed from office, as soon as possible, before he can do more harm to law and order, justice, and political discourse. Trump incited the mob that stormed the U.S. Capitol on Wednesday [Jan. 6, 2021: a date that shall live in infamy] just as Congress was about to complete the process of electing Joe Biden as president and confirming Trump as the loser in 2020 election.

            My home state of Tennessee faced a similar dilemma in 1979 in dealing with an out-of-control lame-duck chief executive as evidence emerged that Gov. Ray Blanton was selling pardons through his counsel to convicted felons. The U.S. attorney in Nashville worked with Democratic legislators to cut off the pardon-selling scheme by helping engineer the installation of the Republican governor-elect Lamar Alexander three days before the scheduled inauguaration..

            Trump has already engaged in a pardon-issuing binge and is reported to be considering many more in his final days in office, including possible pardons for son-in-law Jared Kushner and even a legally dubious pardon for himself. Trump’s enablers and apologists need to take steps now to prevent any further debasement of the presidential pardon power and any further damage to the constitutional order.  

            My former Tennessean newsroom colleague Keel Hunt detailed the Tennessee story in his masterful book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (Vanderbilt University Press, 2017). As Keel tells the story, the successful effort to thwart further debasement of the governor’s office required acts of political statesmanship by the state’s Democratic leaders and the then U.S. attorney, Hal Hardin, who started the ball rolling by calling Alexander with word that Blanton had more pardons set to be issued.

            With similar statesmanship here in Washington, Republican leaders and the interim U.S. attorney Bruce Sherwin could combine to make it untenable for Trump to remain in office for the ten days that remain in his four-year term. As the federal prosecutor for the District of Columbia, Sherwin could and should state that Trump’s speech on Wednesday morning urging the mob toward the Capito is enough to charge him with the federal crime of incitement.

            Sherwin raised this possibility by telling reporters on Thursday [Jan. 7] that his office is considering possible criminal charges against “all actors, not only the people who went into the building.” Under questioning, Sherwin left open the possibility that Trump could be included among the targets. “We’re looking at all the actors,” Sherwin repeated, according to the account in The New York Times. “If the evidence fits the elements of a crime, they’re going to be charged.” The next day, however, prosecutor Kenneth Kohl batted the suggestion away. “We don’t expect any charges of that nature,” he told The Washington Post.

            Here, for anyone needing a bill of particulars, is the federal law that prohibits incitement 18 U.S.C. §373. The law makes it a crime for anyone to “solicit[], command[], or induce[]” another person to “engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . .”

            The Supreme Court, in the leading case of Brandenburg v. Ohio (1969), held that the First Amendment does not protect from possible prosecution speech, such as Trump’s, if “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Trump’s speech to a throng that numbered in the thousands clearly satisfies those requirements. He directed the placard-waving crowd m to march toward the Capitol and exhorted them to show strength. “You will never take back our country with weakness,” he said.

            The timing of the march needs to be stated clearly: Trump spoke around the noon hour as Congress was set to convene, imminently, at 1 PM to count the Electoral College votes that would verify Biden’s election and confirm his own defeat. In effect, Trump was exhorting a lynch mob to march into the courtroom just as the jury was about to return a verdict. And, in fact, the mob’s successful entry into the Capitol forced Congress into recess, delaying the eventual certification of Biden’s victory past midnight.

            In contrast to the amorphous situation in Tennessee four decades ago, the U.S. Constitution sets out two procedures for removing Trump from office before his term expires: removal by impeachment and conviction in Congress or invocation of the Twenty-Fifth Amendment based on a finding by his own Cabinet that he is “unable to discharge” the duties of the office. Either of those procedures is problematic, but Republicans interested in reclaiming a measure of the party’s integrity could provide the votes needed for conviction in the Senate or the support needed to persuade Vice President Pence to join in invoking the Twenty-fifth Amendment.

            At this writing, Pence is said to be opposed and, in fact, he declined to take a call on Thursday from House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, who wanted to ask him to take that step. Leading newspapers joined last week in editorially endorsing whatever steps are needed to remove from Trump from office now: not only The New York Times, but also USA Today and the solidly conservative Wall Street Journal. As the Times put it, Trump’s “potential to wreak havoc is enormous,” even if his remaining time in office is short. USA Today's editorial cited Trump’s incitement of the assault on the Capitol as evidence that he has “forfeited his moral authority to stay in office.

Trump Diehards Sow Disorder in Contesting Election

           Disorder and even violence are in the forecast for Washington this week as President Trump’s diehard supporters take to the Senate floor and the streets to try to overturn Joe Biden’s decisive victory in the 2020 presidential election. Their efforts promise tense confrontations in D.C. streets between Trump’s paramilitary shock troops from the white supremacist Proud Boys and pro-democracy counter protesters from liberal and progressive advocacy groups.

            With 11 Republican senators now committed to challenging Electoral College votes from several Biden states, their efforts promise a drawn-out debate on the Senate floor and perilous votes for Republican senators in what is normally a purely ceremonial opening of envelopes and counting of votes.

            The defeated president is encouraging the disorder on his Twitter feed by urging supporters to mass in Washington on Wednesday [Jan. 6] as the Senate prepares to count the electoral votes. The effort is doomed to fail because electoral votes certified by the states cannot be rejected except by a majority votes in both chambers of Congress. With a Democratic majority, the House of Representatives is certain to reject the Trump-backed challenges; with a narrow Republican majority, the outcome in the Senate itself is uncertain since some GOP senators have said they will vote to confirm Biden’s victory.

            A Biden spokesman dismisses the Senate protests as political theater. "This stunt won't change the fact that President-elect Biden will be sworn in on January 20th," spokesman Mike Gwin said. Gwin went on to note that Trump’s “baseless claims” of fraudulent voting and vote counting have been dismissed by “Trump’s own attorney general, dozens of courts, and election officials from both parties.”

            Indeed, the Trump campaign and Republican officials in key battleground states have failed in every effort to overturn Biden’s popular vote victories by five- or six-figure margins, unlikely to be overturned even after the most thorough of election audits. In an effort to give substance to the Senate maneuver, Texas’s senior senator Ted Cruz fashioned a proposal calling for a special commission to conduct what he calls “an emergency 10-day audit of the election returns in the disputed states.”

            Texas’s Republican attorney general Ken Paxton had already tried but failed with a “Hail Mary” legal maneuver to get the Supreme Court to consider overturning election returns in four Biden-carried states: Georgia, Michigan, Pennsylvania, and Wisconsin. The Court kicked Paxton’s unprecedented suit, Texas v. Pennsylvania, in a three-sentence order [Dec. 11] that correctly concluded that Texas had no “judicially cognizable interest in the manner in which another State conducts its elections.”

Missouri’s Josh Hawley was the first of the Republican senators to say he would challenge the electoral votes on the Senate floor. Cruz added Arizona and Nevada to the list of disputed states and gained the support of ten other GOP senators for his harebrained scheme of a special election commission to audit the results. All of the senators but one represent states that Trump carried handily: Marsha Blackburn, Tennessee; Mike Braun, Indiana; Steve Daines, Montana; John Kennedy, Louisiana; and James Lankford, Oklahoma, Also backing the plan is Wisconsin’s Ron Johnson, who in effect is seeking to overturn Biden’s victory in his own state.

Four of those backing the plan are senators-elect due to be sworn in as the new Congress takes office: Bill Hagerty, Tennessee; Cynthia Lummis, Wyoming; Roger Marshall, Kansas; and Tom Tuberville, Alabama. But some veteran Republicans have strongly criticized the effort, including Pennsylvania’s Patrick Toomey, Nebraska’s Ben Sasse, Utah’s Mitt Romney, and South Dakota’s John Thune, an assistant Republican leader. “In the end, I don’t think it changes anything,” Thune commented, in a remark that drew a critical tweet from Trump urging the state’s Republican governor to challenge Thune in the 2022 election.  [530]

            Cruz and the others are defying the Senate’s Republican leader, Kentucky’s Mitch McConnell, who had urged the GOP caucus to sit back and allow electoral votes to be cast and counted without challenge. The floor debate and roll-call votes on any individual challenges will put some Republican senators in a tricky political situation of avoiding offense to the millions of Trump voters who believe the president’s bogus claims of voter fraud.

            Nonpartisan election watchers warn that the doomed-to-fail effort poses a longterm threat to public confidence in elections and to the Biden presidency as well. In the short term, however, the threat to civic order is more concrete. In an interview with the pro-Trump Newmax, Texas’s Republican congressman Louie Gohmert openly described “violence” as the only remaining alternative to challenge Biden’s election after a federal court rejected Gohmert’s suit aimed at forcing Vice President Mike Pence to discard some of Biden’s electoral votes. Gohmert backpedaled later by claiming that he did not intend to incite violence in Wednesday’s planned demonstrations.

            Trump’s post-election challenge is all but unprecedented in U.S. history. The closest precedent perhaps is the refusal of southern states to accept Abraham Lincoln’s election in 1860: For Pence, his role as vice president in presiding over the Senate has clear precedents in recent history. As vice president, Richard Nixon had the duty of confirming John Kennedy’s election in January 1961; Al Gore had the same role in January 2001 in confirming George Bush’s victory and followed the parliamentarian’s advice in refusing to recognize a challenge to Florida’s electoral votes.

           

Trump's Lame-Duck Pardons Put Reform on Agenda

             President Trump’s lame-duck spree of presidential pardons has been so blatantly abusive as to breathe real life into long overdue efforts to enact some legal safeguards around the up-till-now unchecked power. Trump’s Christmas-week flurry of forty-six pardons granted undeserved clemency to three corrupt Republican members of Congress, two former advisers who had maintained loyal silence about Trump’s failings in office, and four private security contractors responsible for the September 16, 2007, machine-gun massacre of fourteen Iraqi civilians in a crowded Baghdad square.

             Trump follows but far outstrips the examples of other presidents who used their final days in office to grant pardons to donors and political bedfellows, as the Washington Post columnist Ruth Marcus noted in a column last week [Dec. 23]. President Clinton granted 140 pardons in all on his last day in office [Jan. 20, 2001], including clemency for his half-brother Roger Clinton for a 16-year-old drug conviction and for the fugitive financier Marc Rich.

The Rich pardon smelled of rank corruption, coming shortly after Rich’s ex-wife had “lavished donations” on the Democratic Party and Clinton’s presidential library, in Marcus’s phrasing. Rich had fled the United States after he and his partner were indicted in 1983 for 65 criminal counts in all, including tax evasion, wire fraud, racketeering, and trading with Iran during the U.S.-imposed oil embargo.

Eight years earlier, President George H.W. Bush had pardoned six people connected to the Reagan-era Iran-contra scandal on his final Christmas Eve in office in 1992. Bush preemptively pardoned two Reagan administration officials who had not yet stood trial: former Defense secretary Caspar Weinberger and former CIA official Duane Clarridge. The other four had all been convicted variously for perjury or withholding evidence, including former national security adviser Robert McFarlane, former assistant secretary of state Elliott Abrams, and two former CIA officials: Clair George and Alan Fiers.

Comparing Trump’s lame-duck spree to those examples, Marcus aptly concluded that Trump outranks them by far. “No president has ever misused the pardon power as thoroughly as Trump has,” Marcus wrote, “not to rectify wrongs and dispense mercy but to reward political allies, excuse corruption, and erase, as much as possible, the work of the special counsel who plagued his years in office.”

In the same vein, The New York Times declared in an editorial that Trump “corrupted the presidential pardon” and that Biden “must now repair it” after Biden takes office in January. Biden should make “this deeply important but long-abused power . . . work more as the founders intended: as a counterweight to unjust prosecutions and excessive punishments.” Indeed, the Framers saw the pardon power as an important safeguard against judicial abuse and, for that reason, included no guidelines or procedural rules for its use by the president.

The Times editorial notes that Trump has largely neutered the Justice Department’s pardons office while wielding the power on his own without waiting for Justice to weigh in. To counter DOJ’s prosecutorial bias, the Times backs a proposal by law professor Mark Osler for a free-standing pardon commission staffed by, among others, criminal justice experts, to report directly to the president.

Two of those Trump pardoned included two close advisers who had been convicted of trying to impede the special counsel’s Russia investigation: former 2016 campaign chairman Paul Manafort and Trump’s longtime political adviser Roger Stone. The White House’s statement on the 26 pardons granted on Wednesday, specifically blamed Manafort’s and Stone’s convictions on “prosecutorial overreach” and “prosecutorial misconduct” by the Mueller investigation.

Other lesser figures in the Mueller probe also gained pardons: George Papadopoulos, a former foreign policy adviser who pleaded guilty to lying to the FBI in a plea bargain after agreeing to cooperate with the Mueller probe. He completed a 14-day prison sentence after Thanksgiving 2018.

            The three former Republican congressmen pardoned included New York’s Chris Collins, the first member of Congress to endorse Trump during the 2016 primaries, who had been sentenced to 26 months in prison on an insider trading charge. The others were California’s Duncan Hunter, who was sentenced to 11 months in prison after pleading guilty to misusing campaign funds for personal expenses, and Texas’s Steve Stockman, who was sentenced to 10 years in prison after being convicted of diverting charitable donations to his campaign fund.

            One reform well worth considering would be to eliminate lame-duck pardons altogether, just as Kenya’s constitution does. The Kenyan constitution limits the president’s use of various powers, including “the power of mercy,”  from the time that voting begins in the presidential election until a successor assumes office.

            Trump’s pardons prompted one Republican senator at least to speak out: “rotten to the core,” according to Nebraska’s Ben Sasse. In like vein, the Naderite watchdog group Public Citizen denounced the pardons of the three former congressmen as a “stunning rebuke of ethics in government.”

            The pardons for the four Blackwater contractors, convicted and sentenced to long prison terms for the indiscriminate machine-gunning of Iraqi civilians in 2007, are reminiscent of Trump’s very first presidential pardon. Eight months into office, Trump pardoned Arizona’s tough-talking sheriff Joe Arpaio, a Trump supporter who had been sentenced for criminal contempt of court because of his hard-line tactics in cracking down on illegal immigrants. Like Arpaio, Blackwater’s founder, Erik Prince, has been an influential Trump supporter.

Court Gives Trump a Pass in Census Lawsuit

             The Constitution seems clear enough on how to use the population figures from the once-every-decade Census to apportion seats in the House of Representatives among what are now 50 states. The Constitution requires “an actual enumeration” (Amendment XIV, sec. 2), not an “incomplete” or “partial” enumeration.

            Congress made the constitutional implication explicit in 1929 by specifying in the Census Act that in reporting Census figures to the president, the secretary of Commerce is required to include “the tabulation of total population by States.” Through two centuries of historical practice, the Census has included all persons residing in the United States, without regard to their immigration status.

            President Trump defied these provisions and this practice by issuing a directive to Commerce Secretary Wilbur Ross on July 21 under the title “excluding illegal aliens from the apportionment base after the 2020 Census.” Trump claimed executive authority to adopt this policy and directed Ross to comply “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

            A three-judge federal district court ruled in September, however, that Trump’s directive violated applicable statutory provisions. The court’s ruling, in a lawsuit led by the state of New York on behalf of 22 states and the District of Columbia, found that the presidential memorandum “violates the statutes governing the census and apportionment in two clear respects.”

            Federal district courts had reached the same conclusion in two separate lawsuits, but the Supreme Court concluded last week [Dec. 18] that New York lacked legal standing to bring the lawsuit and that the suit was “premature” because the eventual injury to the Empire State – reduced representation in Congress and reduced federal funding -- from excluding illegal aliens from the state’s population count was “speculative.”

            The Court’s unsigned opinion in Trump v. New York, issued apparently on behalf of the six Republican-appointed justices, leaves Trump free in his final month in office to submit an apportionment formula to Congress likely to disadvantage among others two states, California and New York, that voted against Trump in 2016 and against him again in 2020.

            The Court’s seven-page opinion described the case, contrary to the district court’s 85-page opinion, as “riddled with contingencies and speculation that impede judicial review.” The Court noted the administrative difficulties in determining the number of illegal aliens among the immigrant population in respective states. “We simply do not know,” the Court wrote, “whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.”

            Three liberal justices dissented from the decision in a forceful, 21-page dissenting opinion written by Breyer and joined by Sotomayor and Kagan. Breyer mocked the majority’s seeming insouciance toward what he called the administration’s  “illegal” policy. “Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.”

            Breyer acknowledged that the few cases challenging congressional apportionment in the past came after presidents had presented their tabulations to the House of Representatives for approval. But he argued that leaving the present case unresolved and waiting to adjudicate claims later “risks needless and costly delays in apportionment.”

            The Court’s unsigned opinion expressly left the constitutional and statutory issues unresolved, but Breyer declared unambiguously that on the merits he agreed with the three district courts that had ruled the president’s memorandum unlawful. “Our tools of statutory construction all point to ‘usual residence’ as the primary touchstone for enumeration in the decennial census,” Breyer wrote. “The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside.”

            In contrast to the Court’s silence in regard to the congressional action in 1929, Breyer noted that some members of Congress considered offering proposals to exclude aliens from the population count but none was ever adopted. “Time and again throughout the debate over what became the 1929 Act,” Breyer recounted, “members considered (and rejected) proposals that would have excluded aliens from the apportionment base.”

            Breyer acknowledged that the government had cited some historical evidence to suggest “some ambiguity” about the Framers’ intentions in regard to counting aliens as part of the census required under the Constitution. “[T]he Framers’ intent is not our focus,” he responded. “Instead, the question is the meaning of the statute enacted in 1929.” Apart from that evidence, Breyer contended, “the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. . . . Whatever the merits of that policy, it is not the approach to representative democracy that is set forth in the statute.”

            Congress passed the 1929 law, Breyer recalled, in part to reduce political gamesmanship in regard to the population count used in apportioning seats in the House of Representatives. The conservative justices’ decision to let Trump’s policy stand based on manufactured doubts about deciding the case serves Trump’s goal, knowingly even if not intentionally, of disadvantaging Democratic-majority states. The Court ought not to have been so blind the political purpose behind Trump’s policy, given the obvious conflict with the Census Act’s specification on the issue.