If—very hypothetically—Donald J. Trump were to be convicted and even incarcerated, but also elected president in 2024, could he pardon himself? Since a president’s pardoning power is unlimited, the constitutional question might turn on whether the act of pardoning can be reflexive. Is it a correct use of the word “pardon” to say that someone pardoned himself?
The caption with above photo reads: “The only Man on Record who is known to have Pardoned himself out of Prison. He began life as a School Teacher, Clerk in a Law Office, full fledged Lawyer and Treasurer of a Political organization in New England, with whose funds he decamped. He has been in Prison a dozen times under as many aliases, where he has spent twenty-five years. When he pardoned himself out of prison he was in Nashville, Tenn. under the name of Henry B. Davis. He is now supposed to be dead.”
Leaving aside the Trumpian capitalization in this passage, the man who called himself Henry B. Davis did not actually pardon himself. He confessed that he “forged a petition bearing upward of 150 signatures, writing differing in each, the names of the leading citizens of Tipton, Tenn., the county in which I was sentenced. I then forged a letter bearing the signature of the firm of attorneys that defended me, one of whom was a friend of the Governor … I then forged another letter purporting to have been written by the aforesaid attorney to John Tipton, representative in the Legislature in Nashville, in which he was asked to see Governor Buchanan, and to urge him to pardon Henry B. Davis (my alias). All this was done in March, 1891. On the third day of April, 1891, the pardon reached the warden at Tracy City.”
In any case, this was not the only person to have pardoned himself. A Google search led me to a book by my friend Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution, which mentions the case of Isaac Stephens. While governor of the Territory of Washington, Stephens was convicted and fined for abusing his power. He was fighting a terrible war against Native people but was fined for offenses against white settlers. He actually pardoned himself and got away with it, although just six years later he died heroically on the Union side of the Civil War.
Neither example is very honorable, and I haven’t been able to find other cases of successful self-pardoning … so far.
Sources: John Josiah Munro, The New York Tombs, Inside and Out!: Scenes and Reminiscences Coming Down to the Present.–A Story Stranger Than Fiction, with an Historic Account of America’s Most Famous Prison (1909) and Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today.
The image that accompanies this post is my graph of US counties.* The y-axis is Trump’s share of the vote in 2016. The x-axis is the percentage of each county’s population that consisted of veterans under the age of 45 in 2020. I chose that statistic as a rough proxy for direct involvement with the wars in Iraq and Afghanistan. The correlation is modestly positive and statistically significant.
When I ran a regression to predict Trump’s 2016 vote in each county based on 1) the proportion of young veterans, 2) the degree to which the county is rural, 3) the proportion of the county that is non-Hispanic white, and 4) the proportion of the population that was born overseas, all of those variables except the last one were statistically significant and positive. That means that, after controlling for race and community type, the proportion of young veterans still predicts the Trump vote.
This is merely a cross-sectional relationship, and it would be worth introducing a temporal dimension by investigating whether and how votes changed as the post-9/11 wars unfolded.
The pattern that I show here is compatible with several hypotheses. For example, maybe some communities’ cultures and demographics inclined them both to military service and to supporting Trump, or maybe deep disillusionment with the wars turned some people toward Trump in 2016 because he purported that he had opposed US involvement.
I will not claim that the basic relationship shown here is very strong, and I share it mainly for full disclosure rather than to support an argumentative position. (I wouldn’t try to use the regression as the basis of a professional article.) Yet I continue to suspect that blowback from two protracted military disasters is one cause of our current political discontents.
Americans’ assessments of these wars are filtered through ideology and probably fall into at least three categories:
The invasion of Iraq was imperialistic and intended to favor multinational corporations; thus it was unjust from the start.
The invasions were altruistic, aimed at exporting human rights and democracy; and as such, they wasted US lives and resources. OR
The defeats represent corruption or decadence that must be addressed by making the USA “stronger.”
Any of those views is compatible with deep distrust of US elites, and perhaps above all of Democratic Party leaders who supported the wars. Meanwhile, MAGA Republicans benefit from both 2 and 3.
YouGov reports: “One in five voters – including 45% of Republicans – approve of the storming of the Capitol building.” This is important and bad news. I do not want to minimize it, but I would put it in context.
A bit under half of Republicans support the riot in DC. Republicans represent about 29% of registered voters. Registered voters represent about two-thirds of adults. Adults represent about three-quarters of Americans. By the time you isolate Republican registered voters who support the riot, it’s down to about 6.6% of the population.
To be sure, some of the people in the other pie slices are also part of the problem. For instance, within the “other” slice are 2% of the registered Democrats and 21% of the registered Independents who support the riot. (A total of 10.1% of all Americans support the storming.) Most of that slice consists of people who don’t have an opinion, which is a problem in itself. And among the under-18s and the non-registered people, some probably hold views aligned with Trump.
Still, it is worth putting the hard-core problem in some degree of perspective. My guess is that the images from yesterday will basically become the capsule summary of the Trump years, except for a smallish and dwindling proportion of Americans.
(Survey data from YouGov. Registration percentages from Pew, 2018. Age distribution from Census, 2010.)
[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 reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
Alexander Hamilton, Federalist 1
The answer may be “accident and force.” This graph, derived from Christopher Achen, shows an almost perfect correlation between presidential election results and economic growth during two quarters before the election, adjusted for how many years the incumbent party has held office. It implies that who wins the White House in November will depend almost entirely on what the COVID-19 virus does to GDP during this quarter and next. If the US economy manages 1.5% positive growth despite COVID-19, Trump should win. If it declines, he will probably be done, regardless of the Democratic nominee.
One should always be careful about correlation graphs with relatively small numbers of data points and carefully contrived axes. You can fish for combinations of variables that generate uncannily neat pictures. However, this graph shows the result that you would predict if you hold a theory of electoral politics that goes back at least to Joseph Schumpeter in 1942:
People have better things to do than follow politics closely, let alone form and test careful hypotheses about the impact of political positions on outcomes (holding other factors constant). Voters are not going to be rigorous social scientists.
Instead, voters will assess the most prominent political leaders of the moment by evaluating their own circumstances. They won’t only think about economics, and certainly not only about the nation’s GDP. However, GDP growth is a decent proxy for how well a whole population is faring in their everyday lives compared to last year.
People will judge politicians using other heuristics, such as partisanship, demographics, and ideological labels. These factors also determine what we hear or read about the world beyond our doors. (Watching the Fox News homepage during the COVID-19 crisis, as I have done, is an object lesson in ideological framing.) However, in a system like ours, two closely equal voting blocs with their own media networks will emerge as an equilibrium. Who actually wins any given election depends on the main variable that changes from month to month: GDP growth.
This is bad news for any theory of democracy that envisions millions of people deliberating about ideas and making choices. With Schumpeter, we might at least hope that a national election functions as a test of performance, rotating failures out of office. We would expect Trump to lose in November because things will go badly between now and then, and that will serve as a vivid test of his fitness for office, his allies in the media and Congress, and his ideology (nationalism), which has guided his response to the epidemic. The voters would demonstrate collective rationality by throwing him out.
The problem with that theory is the massive element of randomness. The signal can easily be lost in noise. If COVID-19 hadn’t hit now, Trump wouldn’t be seriously tested. If Hillary Clinton or Bernie Sanders were president now, the government’s public health policy would be better than Trump’s, but we would still face a global pandemic and probable recession. Then the signal would convey that neoliberalism or democratic socialism–not nationalism–was the failed ideology.
To make matters worse, politicians are systematically rewarded for the wrong things. Andrew Healy and Neil Malhorta show that spending (or not spending) money on prevention has no effect on electoral outcomes. However, relief spending is a big boost to an incumbent. This means that Trump may benefit from COVID-19 if things play out fortuitously for him. If we are in recovery by November and Trump is handing out stimulus relief, the crisis may carry him to reelection. In that case, not only would the public receive a false signal about his competence and ideology, but his policy of doing nothing to prevent a crisis would have been rewarded.
Should we therefore give up on democracy? I definitely think not, for these reasons (and I leave aside the tired argument that it is better than the alternatives):
First, all the models discussed above are based on political leaders who are plausibly competent and whose stances and worldviews put them in sync with close to 50% of voters. Trump has always risked not quite meeting those criteria. Up to now, his approval ratings have been well below what you would expect for an incumbent presiding over historically low unemployment. If he were to lose because his statements and policy choices have alienated a significant minority of voters who would have voted for him otherwise, then we’ll learn that national elections at least serve to weed out true losers. Four years too late, but better now than never.
Second, it matters which groups coalesce into the two large blocs of active voters. Those groups are better served when their side wins. Therefore, it matters which citizens we engage and motivate to vote.
Third, a national election, although important, is an outlier among all forms of politics. It is episodic and short-term. Millions of people participate, each having a microscopic impact. It is entirely mediated, since only a tiny proportion of us actually know the candidates. Given our electoral system, it is filtered through a party duopoly.
Local politics can be much better. So can national politics, over a longer time-span. Consider the improvement in mainstream attitudes toward sexual minorities in the US, which affects the stances of presidential candidates as well as many other aspects of our society. That, too, is politics: the result of advocacy, organizing, discussion, and learning. Our expectations for self-governance should be much higher than our expectations for presidential elections, where we must hope that Alexander Hamilton’s “accident” is benign.
Polls usually show that foreign policy is a low-priority issue in US political campaigns. This year is no exception: asked to choose one priority, just 13 percent of prospective voters recently selected foreign policy.
But I think the Iraq and Afghan wars influence Americans in deeper ways. These are not “foreign policy issues,” like how we should address Brexit or North Korea. They represent a wound that hasn’t been treated. The question on people’s minds is not, “What should we do about Iraq?” or even “What should have been done in 2001?” The question underneath people’s explicit thinking is: “What kind of people are in charge of our country?”
After all, the decision to invade Iraq and Afghanistan caused about 60,000 US casualties. (That includes those killed or wounded but not suicides or PTSD cases.)
It is very hard to know how many Iraqis and Afghans have died, because the data are not available and because it’s debatable how much causal responsibility the US holds for the deaths of various combatants and civilians. However, by 2007, 53% of Iraqis were saying that “a close friend or relative” had “been hurt or killed in the current violence.”
The running tab for the two wars is about $6 trillion, which is about 30% of the goods and services that all Americans produce in a year.
And for all this sacrifice and damage, we have lost–failing to attain any of the original objectives of the Bush Administration. Iran has the most power in Iraq; we are negotiating a ceasefire with the Taliban, whom we supposedly defeated in 2002.
For some Americans, none of this may be very salient. But for others, it reflects a deep betrayal by the global elites who sent our men and women into danger overseas. For still others, it is a classic case of American imperialism running amok. Considering the magnitude of the disaster, the debate has been relatively marginal or even submerged. But I think it’s always just below the surface.
Consider the record of these presidential candidates since 2008:
Hillary Clinton: votes for the war, apparently in large part because she, her husband, and other senior members of her own party favored it (not just because of the Bush Administration). She later calls her vote her mistake but still feels qualified to run for president in 2008 and 2016 and to serve as a hawkish Secretary of State in between. Thus she is partly responsible for managing the war after having helped to start it. When she comes before the voters, she loses both times.
Barack Obama: against the war from the outset, not in Washington when it starts, seems to want to wind it down; wins the presidency twice.
Jeb Bush: the presumed front-runner for the Republican nomination in 2016, but his brother launched the wars. Wins 4 delegates in the 2016 primary.
Donald Trump: actually fairly positive about the war when it started, but claims to have been against it, which is consistent with his general attitude that foreign interventions waste American lives and treasure. Beats all the establishment Republican primary candidates and Clinton. In office, battles the national security establishment and generally refrains from deploying US military assets overseas. His record conveys a willingness to spend money on the troops, a reluctance to put them in danger, and a contempt for the top brass. Now he’s in a good position for reelection.
Joe Biden: as chair of the Senate Foreign Relations Committee, he votes to authorize the war. Although he is the former vice president in a popular Democratic administration, he looks likely to lose the current primary.
Pete Buttigieg: he opposes the Iraq War yet serves in Afghanistan–sort of the opposite of the bipartisan elites who started the war without putting themselves in danger. Considering that he’s the 38-year-old mayor of the 4th-largest city in Indiana, he’s done pretty well in a presidential primary campaign.
Bernie Sanders: the only Democratic primary candidate who can provide clear evidence that he was opposed to the war and tried to stop it. This is credible not only because his House vote was recorded but because he has opposed almost all US interventions since the 1970s.
If you believe (as I tend to) that dominant US institutions deserved to be sustained and protected even after the debacle of these wars, then there should have been a much deeper house-cleaning. It’s true that Members of Congress who voted for the war faced a hard choice with limited knowledge and no foreknowledge of the 19 years ahead. Nevertheless, they chose wrong and should have been banished from public life unless they took full responsibility for their own decisions and used their power to prevent anything similar from happening again. You don’t shake off hundreds of thousands of deaths, a $6 trillion bill, and a catastrophic defeat and move on to other topics. National leadership is a privilege, not a right, and if you help cause a disaster, you lose the privilege.
Some Americans never had strong reasons to sustain dominant US institutions. They have now been joined by people for whom the past 19 years provide reasons for distrust–whether they believe that globalist elites have betrayed real Americans or that America is the global bully of the neoliberal era. Although I make no equivalence between Trump and Sanders–they are opposites in character, policy proposals, and commitment to democracy and rule of law–a national campaign between those two is surely a consequence of decisions made by 2003.
