Now That Donald Trump Has Lost

Politics
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our government, and by extension culture, is profoundly unprepared to handle agents acting in bad faith. We have a comprehensive set of laws that are fundamentally incapable of handling the input “your actions were bad but I can’t prove your intent was bad”. oh look

First and foremost, Trump’s acceptance of a pardon — under the 1915 Supreme Court opinion in Burdick v United States — is an admission that he was guilty of the crimes for which he has been pardoned. Pardoning him may be the only way that Trump even implicitly concedes he did anything wrong.

That’s it, that’s all any liberal wants from this presidency. They do no want justice. They do not want healing. They want the president to admit he’s wrong because to them these past 4 years have been a culture war.

Imagine what message it sends when the architect of the crime bill pardons the most heinous white billionaire in history.

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Just a FYI, the US doesn’t acknowledge the international courts jurisdiction. So, I mean without acknowledging their jurisdiction a US president has no worry about being found guilty or not-guilty.

That said I mean one avenue is that they could try and get those treaties thru Congress so we can acknowledge the international court system, but considering that would open us up to all types of BS, I think the chance of that is zero.

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I’m well aware, but I was just using it as an example because it’s the most recent and prominent potential non-Trump presidential crime I could think of.

Off-topic, but I would love to ask someone at the international court. If the US did recognize their authority, what US citizens would they have prosecuted and what for?

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So like, I basically agree with the sentiment here. That president’s shouldn’t be above the law WHILE IN OFFICE. There should be like trails at the ICC for sitting presidents. (acknowledging all the reasons why that doesn’t happen here)

That’s not the situation we find ourselves in. It will be just as soon as Biden commits some war crimes or if trump commits any more in the next few months.

The question at play in the article takes presidents being above the law (except congresses toothless nonsense (oh boo hoo congressional censure/impeachment)) as a given and examines if we should be prosecuting ex presidents.

So to meaningfully engage with it you have to live here in the world we live in, where in practice the president is above the law. In said world should we prosecute or pardon ex presidents?

I have my opinions but I’m actually interested to hear what others here think.

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Yes. When we found nazis hiding in South America and other places many years after the war wasover, we prosecuted them. It’s just common sense. You don’t get a free pass just because you avoided being caught long enough. If the crimes are big enough, the only escape should be death. And even in that case, it is often possible to go after the estate.

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I am sympathetic to the idea that if a president needs to think about future prosecutions then that may paralyze their decision making ability. But while I am sympathetic to that I think that they should still be held to account for their actions.

I don’t honestly think that this reasoning is entirely valid. It supposes that the president may one day find themselves in a place where they must make a decision that would be “good” but would be illegal. And that they need the latitude to make that call.

I can’t think of any situation that happened in the last … errr … say … 50 years? 100 years? where a president was making a decision that was illegal but was the “right” decision.

Even when you think of Military command and such, they are held to a much higher standard and honest are in positions where one could argue that the right call would be illegal. But those are rarified situations during combat. And even then, the rules of engagement really push all of that out into the realms of far impossibility.

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If we were redesigning the government of the United States, there should be more explicit rules and penalties for any politician being bad at their job or evil. This seems to be the only way to counteract those seeking office for personal gain - just like we want police officers to be held to a higher/stricter standard in exchange for the power given to them (it is largely not working, but that is the ideal). It could be a graduated punishment system for elected officials so that small and early malfeasance is immediately addressed to hopefully prevent any egregious abuse. Perhaps loosing the power to speak in Congress for a time, then lose the opportunity to vote on a bill in Congress for a time, then removal, then jail, etc… For POTUS, a similar escalating scale that I can’t think of examples for right now. SCOTUS just needs a complete rework. All of this would need a truly objective and neutral arbiter, which I cannot imagine a broadly acceptable scheme (that is, accepted by all political persuasions).

But all of this is moot, because if we can’t practically amend the Constitution from time to time then these much bigger changes are impossible (without a literal revolution or something).

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If for some reason that hypothetical situation does arise, in good faith, there are other ways to take care of it.

A president needs to make a quick decision. Time is of the essence. Democracy is slow. They believe that plan A is the best course of action for the country, the people, and the world. They go with the possibly illegal plan A. The rule of law is as strong as we would like, so the justice system goes to work investigating this crime.

Even if all this happens, there are so so many stops along the way where this situation can be rectified appropriately without allowing future presidents to believe they are above the law. Independent federal prosecutors might decide not to go forward after investigating. A grand jury might decide not to go forward once they understand the president’s actions and good faith intent. Democracy might take action and congress could adjust the law after the fact. The president could end up on trial and a jury could say not guilty after hearing the case. Many judges, and perhaps supreme court justices, might have a say.

Any of those other “outs” are perfectly OK. They are all within the realm of justice and democracy working as we are taught in school that it should be working on paper. They aren’t get out of jail free cards. They aren’t decided by a single person with a pardon.

So the argument I’m making is that we shouldn’t be afraid of threatening the president with the sword of justice if the scales of justice are working properly. It should be reasonable to expect that even the best president, by necessity, will see themselves investigated and possibly prosecuted by the justice system at least a few times. But as long as they are acting in good faith in the interests of the people, they should have nothing to fear from that. In fact, they should welcome the investigation as they should expect exoneration. Going through those procedures will keep presidential power in check even if they do not result in guilty verdicts and sentences.

This reminds me again of something I was just talking about yesterday with Rym. I heard something recently from a European (I think French) business person. I can’t remember exactly where I heard it, or I would link it. The idea was that they were puzzled about why American business people wanted less regulation. When there is less regulation you constantly have to worry about ethics and not doing evil, see also Google. And if you do evil, even willingly, and have a conscience, you have to sleep at night somehow.

But if business is heavily and well regulated, and those regulations are enforced, then you are free. You can just do whatever. Color whatever color you like within the lines. Be as evil a business person as you want to be as long as you follow the rules. Be as evil as you like in the board game, just don’t cheat. Never have to worry that you were evil or wrong in what you did. Rest easy and sleep well. A strong and fair justice system can actually reduce fear and anxiety.

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That relies on trust in the govt and regulators to be fair and even handed, to be accurate as to what is moral and right, and for the regulations to be pragmatic and achievable.

There’s a long mythos of so called regulations being uneven, corrupt, overbearing, and possibly immoral at times, preventing businesses from competing fairly, etc. (In reality I think much of this is myth but I’m aware of some definite BS on the books)

I sympathize with both viewpoints. There is a difficult balance to be struck.

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I completely agree, and you really nail it with

In fact, they should welcome the investigation as they should expect exoneration

I was trying to steelman the position, but I find it such a ridiculous position that I can’t really defend it.

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If we’re going to redesign the government of the US, we should try to change how elections are covered by the media and how candidates actually run for office. This may not be popular, and I’ve posted this article in the past, but presidential elections are run more like high school popularity contests than trying to select the most capable CEO of the biggest and most complicated bureaucracy in the history of the world:

"Modern presidents who have just come to office on the strength of their rhetoric and showmanship are encouraged to continue relying on those skills. “They have been talking for two years, and that’s nearly all they’ve been doing. When they win, they conclude that they can convince people of anything,” the Texas A&M political scientist George C. Edwards III says. “The feedback is pretty strong.”

Governing is about more than talking, though. “The first thing a president needs to understand,” says Max Stier, the CEO of the Partnership for Public Service, “is that in order to run a government, they are going to need capabilities different than the ones needed to win the right to run the government.”

Selling the voters on the idea that you are better than your opponent requires a different set of skills than achieving your preferred outcome on health-care legislation, where there is not one alternative but a series of alternatives on a series of aspects of the policy. Campaigning requires attack and comparison. Governing requires deliberation, cooperation, negotiation. A candidate for president has one constituency: the voters. A president has to navigate the interests of many parties: the voters, Congress, foreign leaders. The attributes that got him into office—Kennedy’s youthful vigor, Reagan’s nostalgic vision, Trump’s bombast—are only somewhat helpful in a job that requires a host of other skills.

In an ideal system, incoming presidents would have months of orientation to learn the ropes and break their rhetorical addiction. No such school exists for presidents. There is a transition process, but it doesn’t sufficiently prepare a president or his team.

Presidential transitions are a bigger undertaking than any private-sector transfer of power. In business, large mergers and acquisitions typically take a year or more and involve hundreds of staffers. Dow Chemical and DuPont announced their $130 billion merger in December 2015, and it closed in September 2017. A president-elect and his team have two and a half months between victory and inauguration to figure out how to run a $4 trillion government with a civilian workforce of 2 million, to say nothing of the military. The United States federal government is the most complicated conglomerate on the planet."

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I was thinking a similar reaction - while I largely agree with the sentiment expressed this is the exact thing Republican rhetoric rails against: Big Government! Which I mention only to say, not going to be easy to bring that about.

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So I’m actually going to take the opposite position here. Which I only partially agree with. If you’re holding the most powerful office in the land but there is the threat of prosecution waiting for you at the end of it. You are somewhat laser focused on avoiding that prosecution. All of a sudden you’re fighting for your life and wielding great power to do so.

Is that the incentive structure we want? You can pretend that crime and justice are apolitical but I know better. If the opposition wants to make you a criminal, they will. “Who among us” and all that.

So becoming president is all of a sudden a position with great power followed by jail. I posit this isn’t great and leads to increasing corruption borne of desperation. An “anything to win the next election” sort of thing.

This actually happened in the government we based ours on. The one that gave us the term Senate. The Roman Republic. It had a somewhat predictable outcome. It turned into the Roman Empire, but not before a whole lot of shenanigans, re trying to stay in power or flee the empire before leaving office.

So in principal I’m anti prosecuting ex presidents. In practice though. I guess it’s fine if we don’t make a habbit of it.

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This isn’t exactly what I want to happen, but I think it’s the most likely reasonable outcome. IMO, a pardon sets a terrible precedent UNLESS it’s part of some “get the state to prosecute him” calculus, and even then I’m not convinced.

Biden has said that while he doesn’t want to pursue Trump, he intends to have an independent DoJ investigate and take the actions it deems appropriate. That, IMO, speaks to the “reestablishing norms” bit, even if I greatly dislike the optics of Biden calling for unity.

I am skeptical of the discourse that is basically saying “put this behind us,” but I’m not wholesale opposed to re-establishing some kind of “normal” while attempting to find redress for clearly substantial gaps in the system. But the call for a pardon is very far from that, and IMO should be viewed with extreme skepticism.

Reconciliation is not possible if the other party does not believe they were in the wrong. You have to demonstrate wrongness in a concrete fashion in order to even begin to attempt reconciling, and IMO that means we do need to make some heads roll.

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I don’t always agree with her, but Jennifer Rubin in the Washington Post had a great opinion piece today about this very topic:

https://www.washingtonpost.com/opinions/2020/11/18/biden-attorney-general-could-be-most-important-personnel-decision/

"Unlike Trump, Biden understands the proper role of the attorney general — and of the White House counsel, for that matter. Neither is his personal lawyer. NBC reports: “President-elect Joe Biden has privately told advisers that he doesn’t want his presidency to be consumed by investigations of his predecessor.” In addition, “Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.”

In other words, he must select someone whose judgment and character are impeccable, and whose priorities sync up with his own. The model should be Edward H. Levi, the first attorney general after Watergate, who instituted a slew of reforms and restored the department’s reputation.

Biden should not ask prospective candidates if they will investigate Trump (avoiding the appearance of picking someone to investigate his political opponents), but he should feel free to ask how they might make that decision. He would be wise to avoid telling a potential pick how to clean house at the Justice Department, but he certainly should inquire as to that pick’s thinking on the topic. Biden should offer full cooperation on preventing politicization of individual enforcement matters and instruct his choice to immediately report any improper attempts to interfere with prosecutorial judgments."

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Oh, I wasn’t talking about at the end. I was talking about at any time whatsoever.

Big agree on letting the independent properly run justice dept. do what it does on its own. The current president shouldn’t spend their time on that. Next attorney general pick will be huge.

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I’m still reading this op-ed, but I just thought of this book:

Physics for Future Presidents (Amazon link, not an endorsement for Amazon)

Getting elected takes certain skills, different from governing, and science doesn’t really factor into to those. Now, this was tolerable before people could put enough carbon into the atmosphere that it actually fucks with weather patterns, or when epidemiology was so poorly understood that we could forgive attorneys from Illinois for their ignorance of the germ theory of disease.

But what you don’t know can hurt you.

“How do you know so much about swallows?”
“Well, you have to know these things when you’re king.”

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Part of the premise of that really long article by John Dickerson that I posted is that the President is asked to do more than is really possible for anyone one human being. As a result, the President basically needs to offload some of the knowledge and decision making onto other people. That’s why a President’s staff and advisors are almost as important as the actual President.

Trump wasn’t just a terrible president, he was also terrible because he picked terrible people to advise him and make decisions for him.

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Maybe the Cabinet should also be elected.

Yes, there are extreme pros and cons to that idea.

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Yea, I can just imagine seeing voter fall off, off the President, that it probably wouldn’t be great, probably end up with Biden and a bunch of Trumpsters in this election.