Last Friday, I joined Barbara McQuade, Jill-Wine Banks, and John Dean at the Gerald R. Ford School of Public Policy to discuss the impact of Nixon's historic pardon
a necessary assumption made is that the constituting of the Constitution was chosen as a relational distribution of powers;
draw from that that the distribution within branches and with minimal overlapping of any together provide, as is noted in the quote from Federalist 51, functional checks and balances arrangement, "...giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others...'' while, and this is important, together and at work cooperatively together, constitute government authority necessary for effective national governance of the American people and in relation to actions of government that States might perform, actions which which might be contrary to national interest or which might [also] significantly support a group interest over another's and without regard to harm to these others and/or to the nation collectively.
In better understanding the Constitution and we the people governance and constitutional civil social agreements and tasks, any individual, group, even the Supreme Court, cannot use any sort of reductionist approach to interpreting meaning or seeking answers that do not respect this relational, conscious assertion of official authority and on-going public effort to choose constitutional as opposed to unconstitutional forms and norms in the presence of seemingly novel challenges and novel opportunities. The system is additive only in the sense that they impart the most important and workable collection of governing tools, and the system fails if all four components - legislative, public, judicial, and executive - function poorly or become impaired and are not each vigorous in pursuit of the human interests and the separate responsibilities each constitutionally has.
Finally, it is an essential understanding of this engagement with this specific constitutional form to remember the opening remarks made in Federalist No. 1:
"[New York, October 27, 1787]
To the People of the State of New York.
After an unequivocal experience of the inefficacy of the subsisting Fœderal Government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences, nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire, in many respects, the most interesting the world. It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from ref[l]ection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the æra in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind...."
Would that the Supreme Court majority had chosen to respect this; its disrespect we must address and correct. We must be prompt and deliberate in correcting, and we must be factual and clear in explaining the corrective purpose and this purpose's protection of interests shared by all
My comments need criticism. This is a discussion that warrants careful fact-based supports. I welcome any questions. I welcome any efforts to test and to find fault with it. I attempt to argue against my assessment to either change it for the better or put it aside.
Thanks for your apparently tireless efforts and your integrity in doing them.
Thank you, Ms Wehle, for doing these panel discussions and for sharing them with us, ... for making your assessments of resulting understandings and significant questions and significant areas of needed additional research and understanding.
My sense is that, plain readings of the Constitution and of the debates at the Constitutional Convention, along with private and public writings contemporary the Convention and in the years since the origin of the US and the politics of American living and governance under the Articles of Confederation, the recent Supreme Court majority opinion on immunity is contrary to intention and to widely shared publicly expressed conviction. The opinion does not at all express the logic of the Constitution nor the sincere thoughts and interests of the people who crafted the Constitution and imagined its employment. This Court majority merely broke from constitutional review and chose instead to re-write, without a shred of evidence, meaning and intent.
The bearing which the immunity decision has on such exercise of Executive branch authority, e.g., issuing a pardon, is not only potentially destructive of governance under the Constitution. The effectiveness of constitutional institutions for governance and in shaping political civil living are being unmade.
But, the Constitution need not be unmade by this Court majority opinion if, as is the interest of 'we the people' governance within the logic and forms imparted to our care, improvement, and defense, the many of us who understand the Constitution and work to use and improve it use our existing political tools well and fully to select and elect candidates this November.
That the Court majority so misused fact and so abused its constitutional purpose is plainly and easily discovered, beginning with readings of the actual Convention debates, with historically accurate and important discussions of the interests and living context of the 1770s and 1780s, and with diverse other public information. Beginning discovery readings can include Federalist 50 and Federalist 51 [respectively, "New York, Feb 05, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0198 and "New York, Feb 06, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0199 ]. Also and importantly, various newspaper articles of this era provide glimpses and carefully reasoned (some self-serving and unconvincing) statements on the actual content and conscious limits imposed on Executive Branch authority; in there separate and individual content and conclusions, they help us understand that, at the time, Executive authority in a constitutional democracy was not a well-modeled authority and its proposition posed serious challenges in imagining acceptable form and function.
Separation of powers within the federal government and the fact of the powers consciously reserved to State government rested not at all on the concept of an Executive and of executive authority with expansively imagined immunity to effective checks on and institutional balances for Executive decision-making in form and in function. An accountable and thus very effectively limited exercise of strictly defined limited executive powers was in fact the intent and the purpose of government under the Constitution.
In Madison's own words in Federalist 51, "... the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions...."
Not any Supreme Court can re-write the Constitution for us and on its own. It exceeds authority to do so. Publicly making factual, plain language counter-arguments to the Court majority opinion is the only effective remedy and only effective source of federal legislative action to correct and to uproot and supplant the opinion. Such public action will also provide the good faith and factually constituted environment of public opinion which we need to legislate appropriate and effective definitions of 'good behavior' as a means to enforce at least honest use of judicial authority.
I am an attorney old enough to clearly remember Watergate. Indeed, my mom's boss, Rebublican Rep. Bob McLory, bucked his party and voted to impeach Nixon.
I'll have to return to the immunity decision because I didn't read it to be as far flung as you. You write that immunity now reaches "all communications with the President . . . are off-limits for use in a criminal prosecution."
However, I don't see how a criminal conspiracy including the President could ever be an "official act" immune from post-presidential prosecution.
Again, I need to reread the decision. Thank you for your observations. I'll read your book, once I get through my stack of unreads.
One might think plainly and factually about this and feel confident that any reasoned person could distinguish between odious, even criminal intent and choice of action, and official and wholly constitutional, legal use of authority in choice of action. What an emotionally and intellectually satisfying environment of of choosing and acting, eh? Each of us has the human capacities to make such assessment.
However odious and seemingly criminal and conspiratorial a President's conduct might seem to 'any rationale person observer', the opinion of the Supreme Court majority does to me, too, seem irresponsibly and nefariously to invite a sort of willful ignorance in making assessment of it that does allow the conduct to be labelled official and legitimate. How such a differentiation is made between an action chosen by a President who argues it constitutes official responsibility and the same action chosen by me seems to be made without regard to human sense and reason and, instead, belongs entirely to choice.
So, the Court majority appears, in all intents and purposes, to be opening wide the door to wanton, capricious, and any manner of willful choosing and acting by a President, to unmaking much of what makes effective constitutional separation of powers among the three branches, and what constitutes the need in civil living for public and lawful accountability.
As you can see, even under an environment of politics and governance under the Constitution as we have lived, public and legal accountability are difficult to achieve. Bad faith actors and actions have been more and more 'normalized'. Legitimate government action, such as impeachment and effective exercise of special prosecutorial authority, are made ineffective for both odious and partisan reasons of interest.
Kim, having lived through the Watergate period, I so appreciate you for this post! I was glued to the tv during the Watergate hearings with Senator Sam Irvin! In my heart I believe President Ford did the right thing for the country when he issued the Nixon pardon. As it turns out, Nixon’s reputation was tainted almost forever even he regained some of it especially in foreign matters. Gerald Ford was, in my opinion, a good man. Even though President Carter defeated him in 1976, they became close friends until his death! And, I’m a lifelong Georgia democrat! Thanks again for presenting this!
Anthony - thank you! If you watch the video, you know that John Dean said that Ford was mostly concerned that Nixon’s trial would distract him from the work of the presidency. It would have been all-consuming.
He was right! Do you think there’s a snowball’s chance in hell that Biden or Harris would consider a pardon, assuming & praying Harris wins! That’s, unfortunately, a huge assumption at this point! Thanks for your response!
Just in RE the [bob's] comment below,
a necessary assumption made is that the constituting of the Constitution was chosen as a relational distribution of powers;
draw from that that the distribution within branches and with minimal overlapping of any together provide, as is noted in the quote from Federalist 51, functional checks and balances arrangement, "...giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others...'' while, and this is important, together and at work cooperatively together, constitute government authority necessary for effective national governance of the American people and in relation to actions of government that States might perform, actions which which might be contrary to national interest or which might [also] significantly support a group interest over another's and without regard to harm to these others and/or to the nation collectively.
In better understanding the Constitution and we the people governance and constitutional civil social agreements and tasks, any individual, group, even the Supreme Court, cannot use any sort of reductionist approach to interpreting meaning or seeking answers that do not respect this relational, conscious assertion of official authority and on-going public effort to choose constitutional as opposed to unconstitutional forms and norms in the presence of seemingly novel challenges and novel opportunities. The system is additive only in the sense that they impart the most important and workable collection of governing tools, and the system fails if all four components - legislative, public, judicial, and executive - function poorly or become impaired and are not each vigorous in pursuit of the human interests and the separate responsibilities each constitutionally has.
Finally, it is an essential understanding of this engagement with this specific constitutional form to remember the opening remarks made in Federalist No. 1:
"[New York, October 27, 1787]
To the People of the State of New York.
After an unequivocal experience of the inefficacy of the subsisting Fœderal Government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences, nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire, in many respects, the most interesting the world. It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from ref[l]ection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the æra in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind...."
Would that the Supreme Court majority had chosen to respect this; its disrespect we must address and correct. We must be prompt and deliberate in correcting, and we must be factual and clear in explaining the corrective purpose and this purpose's protection of interests shared by all
Thank you Bob, as always, for your thoughtful and insightful comments! Kim
Thank you, Ms Wehle, for the reply.
My comments need criticism. This is a discussion that warrants careful fact-based supports. I welcome any questions. I welcome any efforts to test and to find fault with it. I attempt to argue against my assessment to either change it for the better or put it aside.
Thanks for your apparently tireless efforts and your integrity in doing them.
Thank you, Ms Wehle, for doing these panel discussions and for sharing them with us, ... for making your assessments of resulting understandings and significant questions and significant areas of needed additional research and understanding.
My sense is that, plain readings of the Constitution and of the debates at the Constitutional Convention, along with private and public writings contemporary the Convention and in the years since the origin of the US and the politics of American living and governance under the Articles of Confederation, the recent Supreme Court majority opinion on immunity is contrary to intention and to widely shared publicly expressed conviction. The opinion does not at all express the logic of the Constitution nor the sincere thoughts and interests of the people who crafted the Constitution and imagined its employment. This Court majority merely broke from constitutional review and chose instead to re-write, without a shred of evidence, meaning and intent.
The bearing which the immunity decision has on such exercise of Executive branch authority, e.g., issuing a pardon, is not only potentially destructive of governance under the Constitution. The effectiveness of constitutional institutions for governance and in shaping political civil living are being unmade.
But, the Constitution need not be unmade by this Court majority opinion if, as is the interest of 'we the people' governance within the logic and forms imparted to our care, improvement, and defense, the many of us who understand the Constitution and work to use and improve it use our existing political tools well and fully to select and elect candidates this November.
That the Court majority so misused fact and so abused its constitutional purpose is plainly and easily discovered, beginning with readings of the actual Convention debates, with historically accurate and important discussions of the interests and living context of the 1770s and 1780s, and with diverse other public information. Beginning discovery readings can include Federalist 50 and Federalist 51 [respectively, "New York, Feb 05, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0198 and "New York, Feb 06, 1788 at https://founders.archives.gov/documents/Hamilton/01-04-02-0199 ]. Also and importantly, various newspaper articles of this era provide glimpses and carefully reasoned (some self-serving and unconvincing) statements on the actual content and conscious limits imposed on Executive Branch authority; in there separate and individual content and conclusions, they help us understand that, at the time, Executive authority in a constitutional democracy was not a well-modeled authority and its proposition posed serious challenges in imagining acceptable form and function.
Separation of powers within the federal government and the fact of the powers consciously reserved to State government rested not at all on the concept of an Executive and of executive authority with expansively imagined immunity to effective checks on and institutional balances for Executive decision-making in form and in function. An accountable and thus very effectively limited exercise of strictly defined limited executive powers was in fact the intent and the purpose of government under the Constitution.
In Madison's own words in Federalist 51, "... the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions...."
Not any Supreme Court can re-write the Constitution for us and on its own. It exceeds authority to do so. Publicly making factual, plain language counter-arguments to the Court majority opinion is the only effective remedy and only effective source of federal legislative action to correct and to uproot and supplant the opinion. Such public action will also provide the good faith and factually constituted environment of public opinion which we need to legislate appropriate and effective definitions of 'good behavior' as a means to enforce at least honest use of judicial authority.
I am an attorney old enough to clearly remember Watergate. Indeed, my mom's boss, Rebublican Rep. Bob McLory, bucked his party and voted to impeach Nixon.
I'll have to return to the immunity decision because I didn't read it to be as far flung as you. You write that immunity now reaches "all communications with the President . . . are off-limits for use in a criminal prosecution."
However, I don't see how a criminal conspiracy including the President could ever be an "official act" immune from post-presidential prosecution.
Again, I need to reread the decision. Thank you for your observations. I'll read your book, once I get through my stack of unreads.
Thank you, Mr Kenney, for this comment.
One might think plainly and factually about this and feel confident that any reasoned person could distinguish between odious, even criminal intent and choice of action, and official and wholly constitutional, legal use of authority in choice of action. What an emotionally and intellectually satisfying environment of of choosing and acting, eh? Each of us has the human capacities to make such assessment.
However odious and seemingly criminal and conspiratorial a President's conduct might seem to 'any rationale person observer', the opinion of the Supreme Court majority does to me, too, seem irresponsibly and nefariously to invite a sort of willful ignorance in making assessment of it that does allow the conduct to be labelled official and legitimate. How such a differentiation is made between an action chosen by a President who argues it constitutes official responsibility and the same action chosen by me seems to be made without regard to human sense and reason and, instead, belongs entirely to choice.
So, the Court majority appears, in all intents and purposes, to be opening wide the door to wanton, capricious, and any manner of willful choosing and acting by a President, to unmaking much of what makes effective constitutional separation of powers among the three branches, and what constitutes the need in civil living for public and lawful accountability.
As you can see, even under an environment of politics and governance under the Constitution as we have lived, public and legal accountability are difficult to achieve. Bad faith actors and actions have been more and more 'normalized'. Legitimate government action, such as impeachment and effective exercise of special prosecutorial authority, are made ineffective for both odious and partisan reasons of interest.
Donald Trump and Richard Nixon both have criminal reputations, but Nixon did something Trump will never be able to do - partially redeem himself!
Kim, having lived through the Watergate period, I so appreciate you for this post! I was glued to the tv during the Watergate hearings with Senator Sam Irvin! In my heart I believe President Ford did the right thing for the country when he issued the Nixon pardon. As it turns out, Nixon’s reputation was tainted almost forever even he regained some of it especially in foreign matters. Gerald Ford was, in my opinion, a good man. Even though President Carter defeated him in 1976, they became close friends until his death! And, I’m a lifelong Georgia democrat! Thanks again for presenting this!
Anthony - thank you! If you watch the video, you know that John Dean said that Ford was mostly concerned that Nixon’s trial would distract him from the work of the presidency. It would have been all-consuming.
He was right! Do you think there’s a snowball’s chance in hell that Biden or Harris would consider a pardon, assuming & praying Harris wins! That’s, unfortunately, a huge assumption at this point! Thanks for your response!
Just sent you a direct message regarding a 1977 joke! We need a little humor these days!
Here's one from that time.
What flies and has a crooked ****?
Air Force One!