Flagrant violations do not require proceedings to state what is in plain sight; and the gentleman from New York has been in violation of the emoluments clause, the take care clause, the oath, and, therefore, in contempt of the Constitution from the beginning. To use a renowned scholar's phrase, "the complete power to pardon," according to Article II, Section 2, Clause 1, applies "except in cases of impeachment." Does that mean no pardons at all can be granted in the present circumstances, if the plain sight rule prevails?
THE HISTORY OF THE AMERICAN REPUBLIC is defined by means and ends. That is why we are so conscious of our shortcomings. That is why our hypocrisy twists and shouts. And that is why we are not satisfied.
The Declaration laid out our ideals and the case against the king. For all its faults, the first charter, the Articles of Confederation, was a fulcrum to help nudge us in the right direction. That did not change with the Constitution, which does the same. For the oath reminds us of the sacred relationship between means and ends, the reconciliation of the idea and the reality, and resistance to convenience over commitment. There was no confusion--then.
All the "competent powers" of the Presidency must be exercised with "a due responsibility"; and Alexander Hamilton's two examples regarding reprieves and pardons were extraordinary and mundane. (The Federalist Papers, No. 70) The first was treason--the only crime defined in the Constitution--because it is a threat to the life of the Republic, and where the power of forgiving would be used, if possible, to "restore the tranquillity of the commonwealth." (The Federalist Papers, No. 74) The second, acting as a check on the judiciary, was not as dramatic but should not be discounted. (The Federalist Papers, No. 74)
Now confusion has arisen. Its promoter has tried to make the unthinkable commonplace. Questions are asked, or suggested, that answer themselves: Can a President pardon himself? Can a constitutional power be used for an unconstitutional end? And yet there is the pretense of mystery.
Neither Hamilton nor Blackstone was confused, for a monarchy is one thing and a republic another. No, that came later with sleight of hand and fancy footwork.
If the king can do no wrong, he has no need to pardon himself. (Commentaries on the Laws of England by William Blackstone, Volume I, 238) But if the President of the United States can pardon himself, his person is more "sacred and inviolable" than that of the king because the Supreme Court has said that "a pardon...carries an imputation of guilt; acceptance a confession of it." (The Federalist Papers, No. 69 & Burdick v. United States, 236 US 94) Thus, such a deed would mean the President can do no wrong with impunity, which would be a betrayal of history, the Constitution, and Common Sense.
"Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself." (Memorandum Opinion for the Deputy Attorney General, August 5, 1974: hereinafter the Pardon Memorandum)
But with a twirl of the cape comes the side-step and glide.
"A different approach to the pardoning problem could be taken under Section 3 of the Twenty-fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office." (Pardon Memorandum; emphasis added)
By playing musical chairs--and footloose with the Fundamental Charter--the new butterfly effect makes the Chief Magistrate of the Union and his Deputy the American Monarch and his Crown Prince. Instead of "Lock him up!" chant "Felons rule!"
The objections to monarchy in the Declaration showed that no matter the forms of address, means and ends were out of balance. And for those who major in missing the point, please do not fixate so much on the title that you forget about the deed.
Status in the American Republic was to be based on merit and making the most of opportunity. Thomas Jefferson dismissed "an artificial aristocracy founded on wealth and birth" in favor of "a natural aristocracy" of "virtue and talents." His concern was not academic: "The artificial aristocracy is a mischievous ingredient in government, and provision should be made to prevent its ascendancy." (Emphasis added.)
"No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." (Article I, Section 9, Clause 8)
The farewell to heredity and wealth was reinforced by the report President Washington had Secretary of War Knox send to Congress in support of Universal National Service. Like Elijah on Mount Carmel pouring water on the sacrifice, so did Knox--on those who lacked the fire of patriotism. (I Kings 18:1-39, KJV)
"But it ought to be remembered that measures of national importance never should be frustrated by the accommodation of individuals...."
And he did it the second time.
"If wealth be admitted as a principle of exemption, the plan cannot be executed. It is the wisdom of political establishments to make the wealth of individuals subservient to the general good, and not to suffer it to corrupt or attain undue indulgence."
And he did it the third time.
"All being bound, none can complain of injustice, on being obliged to perform his equal proportion. Therefore, it ought to be a permanent rule, that those who in youth decline or refuse to subject themselves to the course of military education, established by the laws, should be considered as unworthy of public trust or public honors, and be excluded therefrom accordingly." (Emphasis added.)
The Constitution's prohibition on granting any titles of nobility--a step toward equality--was not about a label but the display of distinctive traits, hereditary succession and an enormous disparity of wealth. (Article I, Section 9, Clause 8 & Section 10, Clause 1) The ban on nobility is related to the emoluments clause, which the gentleman from New York has ignored. And that is why he fathered the twins and controlled how they were raised. For the gentleman from New York was thoughtful on the subject of "the complete power to pardon"--thoughts full of his aides, his family, and himself.
The Arpaio pardon was an abuse of the power.
"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.... As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance." (Alexander Hamilton, The Federalist Papers, No. 74; emphasis added)
The intention of the man in the Tower was to create a nobility, an artificial aristocracy--for his barons. Thus, the gentleman from Arizona is a candidate for the Senate beholden to his benefactor. And so, a constitutional power has been used for an unconstitutional end, a test designed to make the preposterous seem plausible. A question worthy of a comedian--Can a President pardon himself?--was not a set-up for a punchline.
"The President...shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (Article II, Section 2, Clause 1; emphasis added)
Flagrant violations do not require proceedings to state what is in plain sight; and the gentleman from New York has been in violation of the emoluments clause, the take care clause, the oath, and, therefore, in contempt of the Constitution from the beginning. Thus, if the plain sight rule prevails, no pardons at all can be granted in the present circumstances. Otherwise a bite shall be taken from the most poisonous fruit since the time of Adam and Eve.
"Give me a place to stand," said Archimedes, "and I will move the Earth."
What is true of the lever is true of ideas, as Hamilton reminds us.
It has been frequently remarked that 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. If there be any truth in the remark, the crisis at which we are arrived
may with propriety be regarded as the era in which that decision is to be made; and a
wrong election of the part we shall act may, in this view, deserve to be considered as the
general misfortune of mankind. (The Federalist Papers, No. 1)
The consequences are enormous.
"It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation." (The Federalist Papers, No. 11)
Like an iceberg, appearances can be deceiving. But a glimpse of the unseen can be revealing. Despite how things seemed on Earth, God was bragging about a human being named Job. (Job 1-2, KJV) That is the God in whose Name many take the oath, the Holy One with great faith in us. And it is time for mankind to stand up and not let God down.
The incongruity between a monarchy and a republic cannot be ignored. For the one, there is no separation between the person and the position. For the other, there is a distinction between the individual and the institution. Here, the Chief Executive is not "a perpetual magistrate," which highlights differences between them in regard to the traditional view of national security affairs. (Alexander Hamilton, The Federalist Papers, No. 70)
However proper or safe it may be in governments where the executive magistrate is an
hereditary monarch, to commit to him the entire power of making treaties, it would be
utterly unsafe and improper to intrust that power to an elective magistrate of four years'
duration. It has been remarked, upon another occasion, and the remark is unquestionably
just, that an hereditary monarch, though often the oppressor of his people, has personally
too much stake in the government to be in any material danger of being corrupted by
foreign powers. But a man raised from the station of a private citizen to the rank of Chief
Magistrate, possessed of a moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station from which he was
taken, might sometimes be under temptations to sacrifice his duty to his interest, which it
would require superlative virtue to withstand. An avaricious man might be tempted to betray
the interests of the state to the acquisition of wealth. The history of human conduct does
not warrant that exalted opinion of human virtue which would make it wise in a nation to
commit interests of so delicate and momentous a kind, as those which concern its intercourse
with the rest of the world, to the sole disposal of a magistrate created and circumstanced as
would be a President of the United States." (The Federalist Papers, No. 75;