Joe Biden and Hunter stepping out of a bookstore in Nantucket on November 29, 2024. (Mandel Ngan/AFP via Getty)
“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?
(Note to readers: This is an excerpt of The Weekly Dish. If you’re already a paid subscriber, click hereto read the full version. This week’s issue also includes: my take on the SCOTUS arguments for “trans-affirming care”; my talk with David Greenberg on his new biography of John Lewis; lots of listener commentary on recent episodes; many dissents over Ukraine and transgender topics; five notable quotes from the week in news, including two Yglesias Awards; 16 pieces on Substack we enjoyed on a variety of subjects; a Mental Health Break of celebs on Miami Vice; an autumnal view from Vancouver, WA; and, of course, the results of the View From Your Window contest — with a new challenge. Subscribe for the full Dish experience!)
From an old-school Dishhead:
I’m a longtime reader who’s glad to be back. I was a high schooler back in the white-text-on-blue-background Dish days. I’m now just another middle-aged human, landing somewhere left of center, who’s trying to figure out what the hell is going on. Your insight is always appreciated.
I just wanted to say thank you for the past year of writing. I got my dad — a Reagan conservative who was taken in by the Gingrich, Limbaugh, O’Reilly, and Butters-types who paved the path to Trump — a subscription to the Dish on his birthday, Nov 3rd, last year. He and I don’t talk much, since politics has been bitter and left us both angry. I ended up taking him at his word and actually studying conservative and economic principles, where as he has always been more of a “leave me alone” conservative, reacting from the gut and being suspicious of the government.
I’ve tried a few different ways to bridge the gap, but I think the Dish has been my best move. I got him a sub to the Dish and the WSJ, and he’s been reading both. I’ll occasionally get a text about one or the other. I know he’s reading.
So thank you, on behalf of my dad, for writing a path to those lost in MAGA land towards the saner center.
The Sexless Human
Mr Potato Head without any attributes
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.
(Read the rest of the piece here, for paid subscribers.)
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.
Browse the Dishcast archive for an episode you might enjoy (the first 102 are free in their entirety — subscribe to get everything else). Coming up: Christine Rosen on humanness in a digital world, Brianna Wu on trans lives and politics, Mary Matalin on anything but politics, Nick Denton, Adam Kirsch on his book On Settler Colonialism, and John Gray on the state of liberal democracy. Please send any guest recs, dissents, and other comments to dish@andrewsullivan.com.
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.
Read my response here, along with another Ukraine dissent and two others on the bathroom crusade by Nancy Mace. More dissents over both topics are on the pod page. 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.
This is a feature in the paid version of the Dish spotlighting about 20 of our favorite pieces from other Substackers every week. This week’s selection covers subjects such as “elite overproduction,” the woke right, and our gerontocracy. Below are a few examples, followed by a brand new substack:
Meghan McCain covers the Hunter pardon as a fellow “nepo baby.”
Here’s a list of the substacks we recommend in general — call it a blogroll. If you have any suggestions for “In the ‘Stacks,” especially ones from emerging writers, please let us know: dish@andrewsullivan.com.
The View From Your Window Contest
Where do you think it’s located? Email your guess to contest@andrewsullivan.com. Please put the location — city and/or state first, then country — in the subject line. Proximity counts if no one gets the exact spot. Bonus points for fun facts and stories. The deadline for entries is Wednesday night at midnight (PST). The winner gets the choice of a VFYW book or two annual Dish subscriptions. If you are not a subscriber, please indicate that status in your entry and we will give you a free month subscription if we select your entry for the contest results (example here if you’re new to the VFYW). Contest archive is here. Happy sleuthing!
The results for this week’s window are coming in a separate email to paid subscribers later today. A sleuth in Sydney takes the long view:
I’ve got a bit of time on my hands, as I’m recovering from a small operation. Op went well and I’m on the road the recovery, but I needed a side project to keep the boredom away. So I thought something handy would be a Google Maps of all the past VFYW contests.
It’s very impressive how much of the globe the contest has covered!
I’ve tried to find a way to add the contest link to each location, but Google Maps won’t let you do that. If you click on each pin, it tells you which contest number it is, so that’s a start. Unfortunately, when the contest is in the same city, it will often put the pins on top of each other. I also have no idea if it’s possible to automate so it links to that archive page and adds a pin each week, rather than manually adding to a CSV file. Perhaps someone more computer literate can work that out too? (There’s a cool feature to view it in Google Earth, but I can’t work out how to make that shareable either.)
