Executive Branch

Pardons, Obstruction of Justice and the Rule of Law in the Demagogic Presidency

Bob Bauer
Sunday, June 3, 2018, 1:41 PM

The kind of presidency that Hamilton and others feared has arrived.

Published by The Lawfare Institute
in Cooperation With

Critics of President Trump’s recent pardons understandably, and correctly, see in them the actions of a man unable or unwilling to separate his personal interest and public role. He bypassed the Department of Justice’s well-established advisory process for supporting a president’s consideration of pardons, and he opened himself to the suspicion that he was making political points, catering to favored constituencies or perhaps sending reassuring messages to witnesses, suspects or even targets in the Russia investigation. Once again, Donald Trump did things his way, as he pleased and in his own interest.

This is a sharp criticism of his actions, but it is more than that. It also serves as a description of his leadership style, which is that of the classic demagogue. The politics of demagoguery most clearly defines the rule-of-law issues raised by Trump’s pardons and shows how they relate to his other moves to reshape the norms governing the executive’s stewardship of law enforcement.

The Founders understood that the demagogue is defined by the quest for what Hamilton referred to as “their own aggrandizement,” ever ready to assume “the pretext of some public motive...to sacrifice the National tranquility to personal advantage or personal gratification.” In the case of demagogues, it is always about them: their wishes and frustrations, their friends and their enemies, their wins and their losses. Former CIA director John Brennan, noting his observation of the difference between Trump and his three immediate predecessors, identifies this trait: the “preoccupation with aggrandizing himself,” the choices he makes “according to a calculus of how it will personally help or hurt him,” the pervasive “self-absorption,” the “selfishness.”  

This is a matter of character, for sure, but it is one of politics, too: the politics of the demagogue. Trump is, after all, the president who has boasted about the reliability of his instincts and of his unique personal capacity to “fix” a broken political system. Only recently he was reported to have told “confidants … that he wants to be less reliant on his staff, believing they often give bad advice, and that he plans to follow his own instincts.”

The pardons of Joe Arpaio, Scooter Libby and, now, Dinesh D’Souza are studies in demagogic self-interestedness. Arpaio, of course, has been a political ally, and the pardon was an opportunity yet again for the president to make a show of his toughness in immigration matters and his contempt for the obstacles thrown in his path by the courts. In Libby’s case, Trump claims that he had “heard” for some time of the government’s purportedly unfair treatment of Dick Cheney’s former chief of staff. From whom, directly or indirectly, did he hear this? One possibility is the lawyer representing Libby, Victoria Toensing: her husband, the former U.S. attorney Joe DiGenova, has taken regularly to Fox News to mount vociferous defenses of the president against the Mueller investigation, and the couple interviewed for the president’s personal legal team. And Trump may well have taken into account the role in the Libby prosecution of his nemesis Jim Comey.

Now, with the promised pardon of D’Souza, Trump can strike another personally resonant note of resistance to the alleged misuse of criminal law to persecute political opponents. Lest anybody miss his point, he threw into his commentary of recent days the possibility of commuting the sentence of another (currently incarcerated) politician aggrieved by public corruption charges: former Illinois governor Rod Blagojevich, who was prosecuted and convicted for his efforts to auction off Barack Obama’s U.S. Senate seat after the 2008 presidential election.

It is no surprise that a demagogic president is infatuated with the use of the pardon power—termed by Jeffrey Couch as "one of the few remnants of kingly power vested in the president by the Constitution." It was similarly irresistible to another of America's fabled demagogues. Huey Long, advertising what he would do in his “First days in the White House” in a short fiction by that name, imagined a conversation with his future attorney general in which he proposed to pardon as many as “thousands, possibly tens of thousands” of prisoners unfairly imprisoned for acts of "self-preservation." Apparently prompted by the Mueller investigation, Trump has taken a special interest in this constitutional authority, which he has termed a “complete power." Frustrated that some believe that he cannot do what he wishes with the Department of Justice, he has found in the pardon something like the unfettered personal control and field of unrestricted action that he seeks.

Sometimes in a discussion of the president-as-demagogue, I hear the concern that demagoguery is more a charge than an analysis and that it mistakenly locates the critique of the president in his person and not in specific actions that he takes. But as Hamilton and other Founders recognized, there is little space in demagogic leadership between person and the action. The latter is virtually incomprehensible without reference to the former.

This is because the demagogue does not respect the self-effacing nature of the public role. Brennan recalls his experience with previous presidents, Democrats and Republicans, who can put to one side their politics and do "the right thing." In the personal politics of the demagogue, the right thing is what is right for the leader—for him. The submission of the personal will to the demands of the public role entirely alters the character of the “right thing” and turns it into something outward-facing and public-regarding. But this submission is alien to the demagogue.

For this reason, demagogues have little use for decision-making processes. After all, process introduces delay, obstructing the immediate gratification of the leader’s wishes. In the case of pardons, Steve Vladeck astutely points out how process functions to “depersonalize” these grants, mitigating “the possibility that the president might be tempted (or feel compelled) to issue pardons for purely personal or political reasons.” By its nature, process involves the participation of others in the discussion of an official action. For the demagogue, reliant on personal instincts and guided by self-interest, the view of others has little value and can be mostly an irritant, except to the extent that staff and advisers confine themselves to helping the leader achieve his personally determined goal.

Trump may be stuck with process, or the facsimile thereof, in some aspects of his presidency, but it would have to be well-nigh intolerable to him in the case of the pardon, which, as he understands it, is the purest instrument of the president’s will. And so it has come more or less predictably to pass that the Department of Justice has been systematically cut out of his pardon decisions.

Those appalled by this leadership style are often also strangely reassured by it. They imagine that what Trump has brought to the presidency will also leave with him. If this politics is personal, then the repudiation of the person will reform the politics. 

This is a fateful mistake. For the Trump presidency is better seen as a stress test of the constitutional order when, in the conditions of contemporary politics, the Oval Office is open to occupancy by a demagogue. And the rise of the demagogue in American politics is not the same as the ascendancy of this demagogue. Understanding Trump in this way—less as an outsize character from the entertainment and business world who stumbled into the White House, and more as representative of the demagogic leadership type—protects against complacency about this presidency’s long-term implications for the rule of law. There is no reason to believe that someone just like Trump could not follow him into office. And that successor could be more of a threat to institutions than Trump, if, in the words of Brian Klaas, he or she turns out to be “younger, more politically savvy, charismatic, eloquent, and strategically thoughtful.”

The conditions for demagogic rule arise from a number of factors, perhaps most significant being the steep, long-term decline of trust in American institutions. Pew Research Center studies show that a large majority of Americans are so disaffected with their government that they wish to see it fundamentally restructured: 61 percent of those polled in a recent survey say that “'significant changes' are needed in the fundamental ‘design and structure’ of American government to make it work for current times.” If the institutions they previously relied on—in which they were asked to place their trust—no longer work, they're prepared to look for alternatives. It is not surprising, then, that Trump may have more leeway to attack institutional norms if those norms are understood to be critical to the buttressing of institutions. A loss of trust in the institution translates, necessarily, into a broader indifference to the norms on which their functioning depends.

A fundamental restructuring is not easy to come by. It is not clear what it would entail, and there is no reason to believe that the sharp differences among Americans about politics and policy more generally would not extend to the requirements of effective constitutional reform. This, then, is the opening for the demagogue, who seizes on the lack of faith in institutions to call for faith in himself. The modern presidency endowed with its sweeping powers is a lure for this political type—the unparalleled opportunity for self-display and self-gratification. But he can also press for an extension of his robust authority that would enable him to impose his will on decaying institutions that, in their senescence, still put up a fight for the maintenance of what he sees as the old, corrupt order. 

This president’s freewheeling, self-interested use of the pardon authority is one example, but it is by no means the only one. As Quinta Jurecic has argued, Trump may be making more progress than many believe in trimming the independence of the Department of Justice’s criminal law enforcement function. He has taken the step of convening an Oval Office meeting about an ongoing criminal prosecution that directly affects him, his associates and family members, and—over the objections of the law enforcement and intelligence communities—he set up a process for the review of a sensitive portion of the active investigative file under the supervision of his own chief of staff.  

In two letters to the special counsel now reported by the New York Times, one written this past January and the other in June of 2017, Trump’s lawyers insist that as president, he cannot be prosecuted for obstruction of justice. The lawyers expressly tie the pardon power into the broader assertion of Trump’s authority to do as he chooses with a criminal investigation: “by virtue of his position as the chief law enforcement officer…[the president] could, if he wished, terminate the [Russia] inquiry, or even exercise his power to pardon if he so desired.” This statement can be read—is most reasonably and likely intended to be read—to suggest the president’s authority to grant wholesale pardons of witnesses, subjects or targets as the means of ending an investigation—and perhaps a self-pardon as well. And the day after the letters were published, another of Trump’s lawyers, Rudy Giuliani, appeared on television to confirm the president’s view that he “probably” has the power to self-pardon.

The lawyers’ letters defending the president against the obstruction charge do not rest entirely on the constitutional argument. They deny the application of one obstruction statute (while ignoring another), and they argue the facts, including questioning the credibility of Comey’s account of his interactions with Trump. Of course, all of this “argument in the alternative” matters not a whit if the president is correct about his constitutional immunity. So it is on this larger—and for Trump’s purposes, decisive—constitutional question that one would expect a president, cognizant of the gravity of the stand he is taking, to direct a sober-minded presentation of his constitutional position. And in particular, a president attentive to the constitutional and institutional stakes would address head-on the key question of a president’s derailment of an investigation into himself (or family members or close associates).

Neither letter published by the Times does anything of the sort. Nor is the broader constitutional point elaborated with care and seriousness. The January 2018 letter cites Comey’s past statements that a president can fire an FBI director for any reason. This is far from reliance on legal authority: It is a talking point fit for use in a cable-news-show exchange. The same is true of the 2017 letter’s citation to Alan Dershowitz’s commentaries about the actions of prior presidents in directing investigations of specific individuals—but in no case where their purpose was one of self-protection. (And even the lawyers’ suggestion that Dershowitz supports the president’s position is misleading: what Dershowitz says on news shows and what he has written on the topic are not the same, and his writing is strikingly more equivocal about the extent of the president’s constitutional immunity.)

On this fundamental issue of this immunity, then, the president’s lawyers have not put forward a convincing case, nor even seemed inclined to make much of an effort to do so. The letters are a statement of position, a challenge to the special counsel. They reflect no apparent awareness or concession that the president’s stand is one that calls for the most serious and thoughtful arguments in support of his constitutional claim. But if not appropriate to the office, he and his lawyers evidently concluded that it was sufficient for Trump’s purposes. And that, for a demagogic president, is enough. 

The kind of presidency that Hamilton and others feared has arrived. It comes naturally to the demagogue, a core feature of his politics, to attempt to make on his own terms, and in his own interests, the transformative changes that the Pew survey found that Americans want: “‘significant changes’… in the fundamental ‘design and structure’ of American government.”  The demagogue may sell his version of change as critical to the nation’s welfare; his concern will be above all with his own. The response of Congress and the courts will determine not only Donald Trump’s political future but also the shape of things to come long after he is gone.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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