The Pardon Power Vs The Republic
Trump found an Achilles heel in the Constitution. Biden just legitimized it.
“Precedents do not stop where they begin, but, however narrow the path upon which they enter, they create for themselves a highway whereon they may wander with the utmost latitude,” - Velleius Paterculus, a Greek historian.
Like most American males, apparently, I’m interested in the fate of the Roman republic. It’s the greatest single example of a democracy sliding into tyranny after the slow evisceration of its procedural norms, and since the medieval era, we’ve been fascinated by the causes of its demise.
A consensus of sorts has emerged among historians. Little abuses of power in the Roman system slowly multiplied, as rival factions exploited loopholes, or made minor adjustments, for short-term advantages. And so, for example, the term-limits of consuls — once strictly limited to two years in order to keep power dispersed — were gradually extended after the first breach, which set a precedent for further bigger breaches. An esoteric emergency measure — the provision of a “dictator” to restore order in a crisis for a limited six months — was — surprise! — extended indefinitely under Sulla and then Caesar. The tit-for-tat abuses of “the ways of the elders” (or mos maiorum) slowly broke down the republican system until there was no one left to defend it.
This was always the model for the collapse of liberal democracy in America. Not Weimar, which was a very new republic, buffeted by sanctions and reparations after a calamitous war. Rome, like contemporary America, was well-established in its republican ways, and, after throwing off a monarchy, had practiced them for centuries, before it slid into strongman rule.
And if there were a single constitutional provision that, if abused, could tip the American republic into a post-legal authoritarian system, it would surely be the pardon power. Historically, a presidential pardon was designed to show mercy to a remorseful individual who had usually already paid some price for a crime of some sort. The most recent DOJ regulations, for example, reserve pardons for people who’ve waited at least five years after their conviction or release from prison. In theory, nothing qualifies the power but a president’s civic virtue; in practice, it is usually applied very narrowly.
Previous presidents have abused the power — George HW Bush protected Caspar Weinberger, Clinton saved Marc Rich — even as they also deployed it on traditional lines. Some used it for family members — most obviously Clinton’s pardon of his own half-brother, Roger, and Trump’s pardon of the repulsive Charles Kushner, father of Trump’s son-in-law. Ford, of course, pardoned Nixon for reasons of state. But it was Donald Trump who first saw the potential for the promise of pardons in advance for individuals prepared to commit crimes for the president. That takes the pardon power to new heights.
A pro-active pardon for criminality ordered by the president is, after all, another phrase for the categorical end of the rule of law. It means that a president’s flunkies — or anyone else in presidential favor — can commit any crime in the secure knowledge there will never be punishment. It thereby puts an entire class of people selected by the president effectively above the rule of law. It makes the president a king.
And what Joe Biden has now done in offering an extraordinarily broad pardon for his own corrupt mess of a son is to thoroughly legitimize this monarchical prerogative. Hunter has been pardoned not just for specific crimes he has committed or was about to be sentenced for (tax avoidance, gun crime, lying on a federal form, etc.); but for anything illegal he might have done in the last eleven years — which covers all of his shady dealings with Burisma, the Ukrainian company that paid him almost $400,000 for ... not much in particular. It also covers the years when Hunter’s firm brought in a staggering $11 million from Ukrainian and Chinese business interests.
President Biden claims he is merely pushing back against a selectively “political” indictment of Hunter — even as it was a Delaware DA who first brought the charges, and Biden’s own Justice Department that finished the prosecution. Worse, he has consistently denied any wrongdoing by his son — even though Hunter’s corruption, like that of Biden’s brother, Jim, is in plain sight. Part of this is surely self-defense as well. Joe Biden, we know, mingled with Hunter’s clients, helping further Hunter’s corruption.
And now, according to Politico’s Jonathan Martin, Biden is also considering the truly Trumpy idea of retro-active pardons to protect figures like Tony Fauci and Liz Cheney from an incoming, vengeance-driven Trump DOJ. In theory, a president could indemnify his entire administration before he leaves office for unspecified crimes, creating a cycle of above-the-law administrations. How one pardons someone for a crime he might have committed but didn’t is a conundrum the courts will have to figure out, I guess. But right now, it seems it’s a live possibility for broad impunity.
Trump, I should emphasize, is the figure most responsible for the republican rot. Every campaign, he promises to prosecute his political foes. In his first term, he tried, but was pushed back. He is now openly pledging to pardon the insurrectionists of January 6, as well as to exact retribution via the DOJ. And yes, he has suggested going after members of the Biden team — if only to harass them, as he routinely has in his private abuse of the legal system. He may not follow through — he didn’t with Hillary — but even the threat carries consequences.
The American people are secondly responsible for this mess — by re-electing a man brazenly pledging to violate the rule of law by selectively prosecuting his political enemies. But Biden’s tit-for-tat response and proposed addition of retroactive pardons to Trump’s proactive ones — and the way it has been greeted enthusiastically by many Democratic partisans — completes the circle.
It means we could be moving incrementally from the rule of law to the rule of the executive — a system where those in government are above the law, and each president of either party operates on that understanding. Each POTUS will abuse the system to maximize his own side’s advantage; and then his or her successor will do the same in reverse. We simply alternate elected monarchs — just as the Founders intended!
The Founders are responsible too, of course. They built a system designed to thwart any single individual’s attempt to make himself a king — and then provided a nearly unlimited pardon power that, if abused, could do exactly that. They assumed, of course, that some residual level of civic virtue would always endure, some semblance of shame at abusing the rule of law, some faint belief in republican virtues without which all of this can melt away.
But they didn’t live in America in 2024, did they?
The Sexless Human
There were a couple of moments in the oral arguments in US vs. Skrmetti this week that were truly clarifying, I think. The first was about suicides among children and teens with gender dysphoria. They are — as the ACLU lawyer, Chase Strangio, finally conceded when questioned by Justice Alito — “thankfully and admittedly rare.”
That’s a big deal. It’s a big deal because the most common argument used by doctors and activists for child sex-changes for years is that if the kids do not transition, they will kill themselves. “Do you want a dead son or a live daughter?” is the question that has been repeatedly, routinely, posed to freaked-out parents with a dysphoric child. That’s why the Biden administration routinely refers to life-saving “gender-affirming care.” It’s transition or death. In every discussion I have ever had on this topic with someone who supports sex changes for kids, this has always been the first point raised.
This was always a lie. In the Cass Review, there were 15,000 minors followed over a period of five years who were referred for sex changes. In this entire group, there were four suicides in that period. Four too many — but nowhere near a universal risk for all 15,000. I honestly do not know why doctors told this lie (by itself, it should be enough to remove a license), but it hasn’t been loudly debunked by the “LGBTQIA+” movement itself until now. That’s a good thing to get right.
The second moment of clarity for me was weighing the sex discrimination argument, and what it implies about the woke view of the human self. The ACLU argued that if it’s legal to give testosterone to a minor boy (for an endocrine disorder) but not to a minor girl (for sex reassignment), that’s facially discriminatory on the basis of sex.
But quite obviously, giving testosterone to a biological male is not the same as giving it to a biological female. One is designed to facilitate a boy’s normal production of testosterone; the other switches the entirety of a girl’s endocrine system to that of the opposite sex, and sterilizes her. They are not the same treatment for the same purpose, because their bodies are fundamentally different, and what is natural for some will not be natural for others.
But from the point of view of critical queer and gender theory, there is some kind of sense in the sex discrimination point. In the woke worldview, being a man or a woman has nothing to do with biology or the body. Everything is socially constructed all the way down. And so a girl who says she’s a boy — even as young as 2 years old, as Strangio told CNN — is just as much a boy as a biological boy; and to deny her the same medicine, testosterone, on the basis that she is, in fact, a girl, is facially sex discrimination. Biology is irrelevant. And the model of a human being here is sexless.
By sexless, I mean the equivalent of thinking of humans like Mr Potato Head. Our core being is just a beige blob with holes in it. Every attribute, including sex, is chosen first and then attached. The problem is that humans are not Mr Potato Heads; we are organisms, not pieces of plastic. And each one of us has been sexually programmed in our bodies in advance, from the moment of conception, to be one or the other. That sex is replicated in every cell of our bodies.
Every human who has ever existed has either been designed to produce eggs or to produce sperm. (There are DSDs, chromosomal variations on the edge, as there always are in nature, but they do not contradict this rule.) Not every species is like this. But we humans are. Can we exist outside this framework? No we can’t. (And why, one wonders, would we even want to?) But that’s not how the woke see the world. It’s not how they see it at all.
We sometimes think of this trans controversy as a debate about civil rights and medicine. But it is useful at times to step back and truly grasp the radicalism of the ideology fueling the “LGBTQIA+” movement, to see what its vision of humanity is. We are socially constructed abstractions, not bodies. We have no core sex. The core goal of critical gender and queer theory — which is what is behind the child sex change craze — is to end the sex binary entirely as an organizing principle for our society. It is to remove nature from our understanding of what it means to be human. It is as extreme in its epistemological gnosticism as in its philosophical nihilism.
It is not about helping the few, and never has been. It’s about revolutionizing us all.
New On The Dishcast: David Greenberg
David is a historian, a journalist, and an old friend. He was managing editor and acting editor of The New Republic, a history columnist in the early days of Slate, and a contributing editor to Politico Magazine. He’s currently a professor of History and of Journalism & Media Studies at Rutgers. The author of many books, including Republic of Spin and Nixon’s Shadow, his new one is John Lewis: A Life.
Listen to the episode here. There you can find two clips of our convo — on Lewis defending MLK from a sucker-punch by a white thug, and Lewis getting into an ugly political race against a friend. That link also takes you to commentary on our recent episodes with Reihan Salam, Anderson Cooper, and Musa al-Gharbi. Plus, more reader debate over Ukraine and transgender topics.
Money Quotes For The Week
“A failure on this scale isn’t just bad luck; it isn’t a global trend or taking your eye off the ball — no, this is a different order of failure. This happened by design, not accident. Policies were reformed deliberately to liberalize immigration. Brexit was used for that purpose, to turn Britain into a one-nation experiment in open borders,” - Keir Starmer.
“You read the Hallie Biden transcript, and that’s Beau’s widow. And essentially [Hunter] turned her into a crack addict. And this was all happening in 2017, 2018. And Joe and Jill Biden were so concerned about their family that they decided to run for president. So when you talk about the word selfish … their decision to run for president put the entire Democratic Party and the [country] in the position that it’s in now,” - Chuck Todd.
“Donald Trump appoints the first-ever openly gay Secretary of Treasury in American history, and only the second-ever gay cabinet secretary. I have a feeling that DC gay lobby groups like HRC won’t celebrate the smashing of this glass ceiling,” - Glenn Greenwald.
Yglesias Award Nominees
“First openly gay Treasury Secretary. First female Chief of Staff. And picked on merit, not for signaling. Both good and competent people. Credit where credit is due,” - Anthony Scaramucci.
“I think that politics has substituted religion to some extent. People have almost like this religious zealotry toward their political beliefs. … And I am one-million-percentage guilty of honestly allowing [Trump] to kind of break my brain,” - Ana Kasparian.
The View From Your Window
Vancouver, Washington, 12 pm
Dissents Of The Week
On my latest piece on Ukraine, a reader writes:
I’m usually flexible on how people characterize things, but you repeatedly insisted that NATO was attacking Russia because Ukraine is using Western weapons. This is both a wrong characterization and an infuriatingly tone-deaf one. To retort: no, NATO is not attacking Russia. It does not matter if Ukraine is using Western weapons: NATO is not a belligerent in this war. Period. Among countless examples:
Spain provided significant material resources, and sent volunteers to Nazi Germany, during WWII. They were, and are, considered a neutral country.
The US provided weapons to the Mujahideen in Afghanistan against the USSR. The US was not considered a belligerent power in that war.
I could go on, but supplying someone with weapons is simply not the same thing as being at war with someone else. Furthermore, your logic assumes that Putin is being serious, when he has already crossed several of his supposed “red lines” many times already. The question should not be, “Why is Biden doing this?”; it should be, “What the hell took Biden so long?” (The answer: Biden did not want to disrupt the oil market too much ahead of an election.)
Also, why would Putin use nuclear weapons in Ukraine — a war he is objectively winning — and how would using them help him now? For nearly three years, Putin has avoided using nukes because they would not help him, and he has done so in spite of being in far more dire situations than he is now. Using nukes now makes zero sense for him.
So I find your argument specious at best. Your logic would basically lead us to caving to Russia whenever they made a demand because they have nukes.
It kind of does, yes. I do think nuclear powers have more latitude than others. That’s why they want nukes! On the first point, it’s that NATO technicians are personally required to operate the missiles, since Ukrainian forces don’t have the know-how. So our troops are directly involved.
Another dissent:
While I agree with you on nearly every position you hold, I cannot understand your capitulating mindset with regard to Russia and Putin. Because Putin has his finger on the button, you reason, he should not and cannot be held to account for breaking nearly every civilized, First-World norm of behavior?
Why is the West the only party in this conflict that must observe the red lines that Putin has repeatedly crossed? He invaded a sovereign nation, for God’s sake. He has launched missiles into population centers. He showed galling hypocrisy in enlisting North Korean troops in his fight, after stating that the West bringing allied troops to the aid of Ukraine would risk nuclear retaliation. At what point do you take a principled stand and hold this man accountable?
I know you argue that the Ukraine is not our fight, and that it means much more to Russia than it ever will to us. I feel you have a bad case of Chamberlainism. This is apt to not be about Ukraine for long. Do you really think that when we roll over and hand him the Donbas, Putin will be satisfied? After a couple years of rebuilding his army, he will surely want more. Then what? Do we give him the entire country? What about Poland?
If I thought Putin was the same as Hitler, I‘d be less Neville and more Winnie. But Putin isn’t: he’s far weaker, his economy is teetering, his military is unable to advance even into Ukraine. I do not think he’s hoping to invade Poland.
One more dissenter on the war:
The US encouraged Ukraine to give up its nuclear weapons after the fall of the Soviet Union. Failure to aid Ukraine would make other non-nuclear nations think, “If we want security, we need nuclear weapons. We can’t count on the rest of the world.” How Ukraine-Russia plays out affects how Taiwan-China plays out, and possibly other conflicts.
You are neglecting other practical possibilities. The war in Ukraine has been a proving ground for asymmetric warfare and drone warfare. In a conflict with China, these newer technologies and tactics are likely to be critical. Ukraine is rewriting how to conduct warfare in the 2020s, and NATO has been wisely reading every chapter. The bigger test may be coming, as President Xi has said he wants Taiwan reunited with China in the 2027-2030 timeframe.
Turning to my Mace/McBride piece in the same Dish, another dissent:
Mass movements are often born from small events echoing across the country and around the world. I am by no means comparing Nancy Mace to someone like Rosa Parks. But I urge you to view Mace’s social media campaign as a symbolic act encouraging other American women to not feel shame about stating their boundaries.
I am appalled at how much I know about this particular issue and how absolutely ignorant many of my well-educated friends and family members are about it — even my GOP relatives! As much as the trans-queer propaganda machine has been exposed in the last two years (partially aided by Trump’s “They/Them” ads), there is still breathtaking ignorance, and I guarantee you that Mace’s action will result in more people’s eyes being open.
The ignorance shown by some of the Supreme Court Justices this week was indeed remarkable. Regret after sterilization is the equivalent of regret after taking an aspirin?
One more dissent for now:
You wrote, “A transwoman can indeed have a penis; but in so far as she has a penis she remains a biological man. We can treat her as if she were a woman even if she is not biologically so.”
A couple of years ago, the part I italicized would be a no-brainer for me. But now I think that’s the slippery slope. Why do I and everyone else have to participate in a mass delusion that a man is a woman? It’s because we are told a small accommodation is ok. But then, that eventually morphs into “it’s not boys in girls sports because the trans girls are girls.”
Chimamanda Adichie got in hot water for saying “trans women are trans women.” That I think is the right solution. Not to pretend or go along with a farce. Trans women are no less deserving of dignity and respect than anyone else, but it should be completely ok to acknowledge that they are trans.
This feinting and dissembling reminds me of affirmative action. The official line is that it is good policy, but you cannot also say that someone has benefited from affirmative action. So much depends on our collective politeness!
I do think that by moving to expand the whole category of transgender, and to remove the sex binary from the law and culture, transqueers have risked losing everything. People are happy to make exceptions for good-faith transsexuals, who have undergone therapy and medicalization and present as the opposite sex. But if you argue that the only criterion for being a woman is saying you are one, you end in chaos. Critical gender and queer theory is radical, as I noted above. It’s not about civil rights any more. It’s a far more ambitious project to make transness the default human condition.
More dissents on both topics are over on the pod page, arriving in your in-tray shortly. Also, a quick correction: the Money Quote we posted about Sam Smith being “self-partnered” originated from a satire site. As always, keep the corrections and criticism coming: dish@andrewsullivan.com.
Mental Health Break
All the future celebrities who appeared on Miami Vice:
In The ‘Stacks
A livid Damon Linker challenges the Dems to impeach Biden over the pardon.
Thank God for the checks and balances in South Korea.
DeSantis at DOD?
Local GOP opposition is starting to grow against Trump on green energy and immigration.
Is Trump’s win improving foreign affairs already?
Will space travel undergo a revolution under Trump?
Are we seeing the “last gasps of American gerontocracy”?
Bethel McGrew denounces “the woke left and woke right” dancing on the grave of CEO Brian Thompson.
“Smart people are especially prone to tribalism,” writes Musa al-Gharbi.
Yascha Mounk dissents over Turchin’s view of “elite overproduction.”
Mississippi schools have “dramatically improved” over the past decade.
McWhorter and Loury discuss David Greenberg’s book in the context of BLM.
It’s time for the government to finally abolish “race”, argues Michael Lind.
The UK just unveiled its first-ever men’s health strategy
If you still need a nudge to pay for the Fifth Column, do it for Taylor Lorenz.
Gary Taubes starts a ‘stack on nutrition and health.
The View From Your Window Contest
Where do you think? Email your entry to contest@andrewsullivan.com. Please put the location — city and/or state first, then country — in the subject line. Bonus points for fun facts and stories. Proximity counts. The deadline for entries is Wednesday night at midnight (PST). The winner gets the choice of a View From Your Window book or two annual Dish subscriptions.
See you next Friday.