June 16, 2017


Mr. President

Lots and lots of words, written and spoken about Mueller, Rosenstein, Russia, and Trump. Most of what we read and hear focuses on who can fire whom, and whether when the firings will happen. In and amongst the noise, though, we get plenty of “there’s no evidence” and “firing Mueller will destroy Trump.”

Bad frames. People, the Watergate break-in happened on June 17, 1972, 45 years ago, to the day. We live in a different world. To the “no evidence” crowd, evidence exists—or not—and we find out about it through investigations. They take time! Reading tweets, watching the news, and knowing the basics does not qualify you to say evidence does or does not exist to support a … whatever. I say “whatever” for these reasons. First, almost everyone who matters on matters constitutional believes no one can indict and try a president, and that impeachment represents the only remedy for crimes committed by a president. Second, impeachment has no measurable evidentiary standard, for it’s a political process.

To those of you who remain certain that President Trump will suffer for firing Special Counsel Robert Mueller or Deputy Attorney General Rod Rosenstein: did you think Donald Trump would ever be nominated? Elected? We live in an alt-facts, we-they world, in which principles count for absolutely nothing. Lots of Americans like this Trump guy. Many like him because the swells don’t. Enough will stay with him, for sure, to give R Senators and Representatives pause before they take him on.*

So I think the conversations about firings and what price Donald Trump pays for bad acts miss the point. An impatient public, led by a man who knows nothing about patience, will not wait for an investigation, or accept an outcome inconsistent with constituent beliefs. (By the way, I’m agnostic here. I accept Russian interference with our electoral system, for those who know about this stuff leave us with no reason for doubt. Donald Trump’s business affairs and his lack of transparency persuade me that, if he had everything else right, his financial vulnerabilities make him persona non grata to lead our country. He’s a blackmail victim in the making every time he draws breath. But Trump and Russia, colluding? Let’s see evidence. Plenty of evasions suggest evil acts, but I haven’t seen positive evidence of the evil acts.)

Whither, the headline. President Donald Trump can pardon General Mike Flynn, Jared Kushner (the son-in-law), Paul Manafort (the campaign manager), Attorney General Jeff Sessions, and anyone else he wants to pardon. Article Two, Section 2 of the U.S. Constitution states: the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” No ifs, ands, or buts!

Pardons almost surely end Justice Department investigations. President Trump controls the Justice Department. If he pardons everyone, why bother, and he’ll sell the cost savings in his tweets?

Congress can do what it wants, but until January 3, 2019, the Rs will surely control the House of Representatives, and a change in Senate control seems highly unlikely. Continuing investigations? Not likely. Impeachment? Maybe, but to remove a president requires a two-thirds—67 votes—majority of the Senate. If every D Senator voted Aye, 19 of 52 R Senators have to join up. And maybe Ds want Trump around next November, for a President Mike Pence might argue that one party control offers the best way out of what will be, then, our national fiasco.

We faced plenty of challenges on the morning of January 20, 2017, even if you ignore what awaited us at noon. Nothing I’ve seen supports a conclusion that—strictly on the issues—we’re better off because we chose Donald Trump. Issues, policies, and real lives aside, though, we have a brewing constitutional crisis, and I think we need to prepare for pardons, which will make worrying about someone losing his job well, quaint.

*I sat next to Phoenix attorney Scott Rhodes on a professional ethics panel on Thursday morning. Scott’s grandfather, John Rhodes, represented Arizona’s 1st Congressional District from 1953 until 1983. He succeeded Gerald Ford as House Minority Leader when Congressman Ford became Vice President. Congressman Rhodes was also one of three men—the others were Senators Barry Goldwater and Hugh Scott—who told Richard Nixon he needed to resign, on August 7, 1974. The president announced his resignation the next day, and was gone on August 9. Anyone foresee such an occurrence circa 2017?

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