THE MORNING PLUM:
Before you angrily suggest that I’m arguing that Donald Trump is an illegitimate president, let me be clear: No, I’m not. Even if valid questions linger about whether interference by Russia and James B. Comey did help make Trump’s victory possible, I believe Trump is a legitimate president who legitimately won the election.
Rather, I would like to argue that the message that Trump is not your president is one that Trump himself regularly sends to large swaths of the country — deliberately. This is the through line for understanding the Dinesh D’Souza pardon, Trump’s response to the firing of Roseanne Barr, his assaults on the rule of law, and other high-profile Trumpian degradations.
Today, D’Souza opened up to Fox News about a conversation he had with Trump about the president’s decision to pardon him:
“The president said, ‘Dinesh, you’ve been a great voice for freedom,’ and he said that, ‘I got to tell you man-to-man, you’ve been screwed,’ ” D’Souza told Fox. …
“He said upon reviewing it, he felt a great injustice had been done and that using his power, he was going to rectify it, sort of clear the slate, and he said he just wanted me to be out there, to be a bigger voice than ever, defending the principles that I believe in,” D’Souza said.
This generally comports with the White House’s public explanations for the pardon. Officials have said Trump views the original prosecution of D’Souza — for breaking campaign finance laws in an act of serious fraud — as a “selective prosecution by the previous administration,” i.e., a political prosecution. This is the “great injustice” D’Souza referred to.
But in these new comments, D’Souza is also implicitly pointing to what is almost certainly the real reason for the pardon: Trump sees D’Souza as an ally, and he wanted to use “his power” to reward and elevate D’Souza, because he can.
“When we evaluate a pardon, the first thing we should ask is whether the pardon is correcting an injustice, or whether it’s serving a narrow political interest of the president,” University of Chicago law professor Eric Posner told me today. The pardon power exists to “correct politically motivated prosecutions,” Posner noted. But if the original prosecution wasn’t, in fact, politically motivated, Posner added, such a pardon doesn’t actually correct an injustice, but instead serves some other interest and risks “contributing to the overall corruption of our country.”
We will never know for sure whether Trump actually evaluated the legitimacy of D’Souza’s prosecution. But we can infer that he probably did not in any meaningful sense. As Steve Vladeck points out, this is part of a pattern in which Trump doles out pardons without going through conventional internal processes. And we already know Trump views the pardon power as a way to reward allies and serve his own political interests — because he’s already used it that way. Trump pardoned former Arizona sheriff Joe Arpaio, one of Trump’s staunchest political allies, after getting “sold on the pardon as a way of pleasing his political base.”
As Dahlia Lithwick and Mark Joseph Stern point out, these are basically “performative pardons,” in which Trump is effectively sending a message to his people — that is, the slice of his base that thrills to the likes of D’Souza and Arpaio — that he’ll use his powers in whatever ways he can to have their back. But as bad as that is, there is still another dimension to this that is even worse — the message it sends to the rest of the country.
Trump has no sense of institutional obligation to the people
It is now inescapably obvious that in cases such as these, Trump is demonstrating that he does not believe the presidency confers on him any institutional obligation to the rule of law or to the American people — that is, to all the people. If Trump will use the pardon power to tell his people he has their back, what does that say to everyone else? In Arpaio’s case, it says Trump will use his power to protect Arpaio from accountability — he’s one of us — but also that the rule of law will not provide justice to Arpaio’s Latino victims.
We see this on other fronts as well. In response to Roseanne Barr’s racism, the White House insisted that ABC’s sacking of Barr showed a “double standard,” in which Trump unfairly did not receive an apology. This is not an act of omission; it’s an act of commission. The intended message is that African Americans are not the victims of a form of racism that has uniquely awful status in our history, or at least that Trump feels no institutional obligation as president to condemn it as such during fraught national moments.
This was also the obvious intention behind Trump’s insistence, in the wake of white-supremacist violence and murder in Charlottesville, that there is “hatred” and “bigotry” on “many sides.” When faced with a severe backlash over this, Trump felt “vindicated.” Why? Because he sensed his base would agree with him. There was no sense of any obligation to speak to the whole nation as a unifying voice at a difficult moment or to use the presidential bully pulpit to acknowledge that today’s white supremacy carries echoes of a monstrous historical crime and as such deserves unambiguous condemnation. Trump thus shed the presidential obligation to speak in sufficiently conciliatory tones to the Americans who are descended from the victims of it.
Or take Trump’s assaults on the independence of the Justice Department. The norm of prosecutorial independence rests on the idea that law enforcement is supposed to answer not just to the president but also to the law and to the people. Trump flatly rejects this idea: Law enforcement is, to Trump, little more than an instrument of his political will. Here again Trump feels no institutional obligation to the law or to the people — with the exception of his people…………Read More>>
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