Who the hell knows? But at least we can try to understand.

by w3woody

Alan Dershowitz: Can Trump, or any other president, pardon himself?

President Trump’s tweets about his broad power to pardon have raised the ultimate question: Can the president pardon himself? The answer is crystal clear! And anyone who gives you a different answer is misleading you, because there is only one correct answer.

Here it is: Nobody knows!

No president has ever tried it. No court has ever ruled on it. The framers of our Constitution never opined on it. History provides no guidance. There is a clean slate.

Yet pundits and academic know-it-alls will express certainty on both sides of this issue. That’s what pundits and academics do. Rarely do they acknowledge they don’t know, because as experts they are supposed to know. But this is one question whose answer they cannot know.

Well, yeah.

They will have opinions, as we all do. But many will deliberately confuse the is with the ought. If they want the answer to be no, they will pretend the answer is no. If they want the answer to be yes, they will pretend it is yes. That’s the way some pundits and academics advocate: by claiming to be describing what they are not so subtly prescribing.

This has been the case especially with regard to Trump. Too many academics have said that noncriminal conduct by Trump and his administration is a crime, when they wish it were a crime, so that Trump can be removed from office. But wishful thinking is not a substitute for rigorous analysis, which has been sorely lacking among some of my fellow liberal academics.

See, this leads me to wonder what the hell liberals believe will happen if Trump is removed from office–if they make the question of Presidential criminal conduct a political question rather than a question of law.

Do they think we’ll get an election redo? Do they think the results of the election will be overturned and Hillary Clinton installed as President?

And do they think, if they reduce the question of impeachment to a political question regardless of any criminal conduct, that this won’t come back and be used on a future Democratic president? Do they think the same political process used to impeach unpopular Presidents won’t be used to remove unpopular congressmen?

Do they think that somehow, having the illustrious career of a popular politician who is not respected by the majority of other politicians ending in fines or jail time will somehow improve the quality of politicians who run for office?

Do they think destroying people who wish to change the status quo will encourage change?

Or discourage it?

Do they think criminalizing political opinions which counter their own makes things less contentious?

Or more?

Do they think that jailing Trump, stripping him of his assets, and sending a clear message to any conservative citizen that if you cross the liberal progressive movement you run the risk of being utterly destroyed will somehow make things better?

Or do they realize this will become a ‘tit for tat’? After all, Every. Single. President. going back to Ronald Reagan has had articles of impeachment drawn up against them–turning impeachment from a grave act reserved only for the worst actions taken by a President into a pointless political gesture by the opposition. Though up until the election of Donald Trump, opponents at least waited until the President was in the Oval Office before calling for impeachment.

And how would the liberal progressive movement react if a beloved and politically active left-leaning billionaire–such as Warren Buffett–was frog-marched to a Federal penitentiary as the question of criminal political activities is reduced to a question of politics rather than a question of law?

There is a wonderful paper I encountered on Medium by the host of EconTalk, a podcast you really must listen to, if listening to podcasts is your thing. Russ Roberts is a libertarian–but from his podcast and from reputation is probably the nicest gentleman you will ever encounter in the public sphere. His podcasts (where he interviews people of all different political persuasions) are respectful, and while he does defend his own point of view, he gives those he disagrees with tremendous room to express themselves. (It is a trait I wish we would see more of–the last time I saw this was with the Phil Donahue interview of Milton Friedman, which shows just how rare this is.)

His paper gives an interesting theory as to part of the reason why modern politics are in such disarray–though, to be honest, I’m not sure if this is a new thing. (The political screeching has become more shrill, the efforts to implement the politics of personal destruction sharper–but the screeching and the innuendo has always been there as long as I remember. And I remember President Carter in the late 70’s.)

The Three Blind Spots of Politics

Kling argues that our political discourse is dysfunctional because we look at the world through lenses that our political opponents do not share.

Liberals see the world as a battle between victims and oppressors.

Conservatives see the world as a battle between civilization and barbarism.

Libertarians see the world as a battle between freedom and coercion.

Take almost any issue and you see the debate play out along these lines.

Which is why we have so little empathy for political views not our own: because they may as well be speaking a foreign language. But if you realize, for example, that I personally see the world as a battle between freedom and coercion–where coercion can come equally from large faceless corporations as it can from large faceless government bureaucracies, then you may have some empathy for my point of view without concluding (as many liberals do) that I have no imagination and want nothing but to destroy the planet in my racist, xenophobic zeal to chase profits.

And when you understand my own viewpoint you can perhaps empathize with my own belief that the traditional liberal/conservative dichotomy often posited in the press of governments verses large corporations is a false dilemma: stating an issue as a choice between two evils. In fact there is a third way–of small mom-and-pop companies cooperating without being oppressed by a conspiracy of billionaire corporate leaders and powerful governmental politicians.

Remember too that coercion is not oppression or barbarism. Coercion can happen as a matter of process: of otherwise well intentioned people following a poorly designed process that has power over others. Oppression, on the other hand, requires seeing those being oppressed as the enemy deserving of their fate, while barbarism requires a certain nihilism: a certain disrespect for existing institutions and a desire to burn them to the ground regardless of who the enemy is.

Each political group, Russ Roberts goes on to say, has a blind spot:

In this essay I want to add a twist to Kling’s original vision. I want to speculate about the three blind spots of politics. Liberals, conservatives, and libertarians each have a blind spot that should give them pause and maybe reduce the confidence they have in the correctness of their position. (OK, that’s a bit of a fantasy, but I can dream.) Each of these blind spots is a natural outgrowth of the lens that each group adopts.

Those three blind spots?

Liberals first. In their eagerness to empathize with the victim, they can turn the victim into an object rather than an independent actor. Poor people are so oppressed in the liberal view, they don’t just have limited agency to choose and live life in meaningful ways. They have no agency. They are simply objects manipulated by powerful people around them.

Conservatives dehumanize in their own way. In their zeal to preserve civilization and the American way of life, they demonize those that they see as a threat to civilization. They can forget that most immigrants are hard-working individuals who want a better life for their children. They can forget that poor people face tremendous disadvantages and that while some can rise about their situation to find opportunity, the environment that many poor people live in makes making it, even in America, oh so difficult. …

My tribe, the libertarians, has a special set of blind spots all our own. We often romanticize the power of economic freedom. We struggle to imagine that some people are poorly served by markets, that some transactions involve exploitation of ignorance and that the self-regulation of markets can fail. In our zeal to de-romanticize government, we often ignore the good that government does especially in cases where freedom might perform badly. Our worst mistake is to defend the freedom of business to do what it will in situations where government has hampered or destroyed the feedback loops of profit and loss that make economic freedom successful.

I fear too many libertarians for example, defend Wall Street simply because it is the punching bag of liberals, forgetting that Wall Street helps make the rules that exempt the largest banks from the market discipline of profit and loss.

These dimensions and blindspots meld nicely with an earlier work by Thomas Sowell, A Conflict of Visions, which posit two fundamental philosophical positions underlying all of politics:

Those who believe in the Unconstrained Vision see mankind as morally perfectible, and believe moral perfection towards a Utopian society is possible. Compromise and competition distracts from this path. And there are some, the “self anointed”, Bodhisattvas, who can act as surrogate decision-makers for mankind as they lead us to perfection.

And those who believe in the Constrained Vision who see mankind as fundamentally unchanging and self-interested. Individuals may improve; the species does not. Because of this they see the idea of Utopia as a dream, and practicality requires the constraints of the rule of law and constraints of tradition. Conflict and compromise is necessary and inherent to good governance. And so-called “Bodhisattvas” are to be distrusted, as no man can attain true Buddhahood— besides, they can no more lead mankind to a higher moral state than they can herd cats.

A difference between the two can be seen in how they see self-interest. The believer in the unconstrained vision may see general self-interest as a dangerous vice that carries us away from Utopia (a fascinating position given how so many liberal-progressives strongly defend the self-interest of sexual desire and sexual expression). The believer in the constrained vision, however, sees self-interest in the way Adam Smith does in “A Theory of Moral Sentiments:”

The administration of the great system of the universe … the care of the universal happiness of all rational and sensible beings, is the business of God and not of man. To man is allotted a much humbler department, but one much more suitable to the weakness of his powers, and to the narrowness of his comprehension: the care of his own happiness, of that of his family, his friends, his country…. But though we are … endowed with a very strong desire of those ends, it has been entrusted to the slow and uncertain determinations of our reason to find out the proper means of bringing them about. Nature has directed us to the greater part of these by original and immediate instincts. Hunger, thirst, the passion which unites the two sexes, and the dread of pain, prompt us to apply those means for their own sakes, and without any consideration of their tendency to those beneficent ends which the great Director of nature intended to produce by them.

The rich only select from the heap what is most precious and agreeable. They consume little more than the poor, and in spite of their natural selfishness and rapacity, though they mean only their own conveniency, though the sole end which they propose from the labours of all the thousands whom they employ, be the gratification of their own vain and insatiable desires, they divide with the poor the produce of all their improvements. They are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species.

In other words, God granted us “self-interest” so that we may take care of ourselves–and if we all act in morally restrained self-interest (meaning we work hard, don’t steal from others, and act with respect of others)–we act as if guided by the Invisible Hand of God.

These two dimensions: Unconstrained verses Constrained and the political dimensions of Conservative, Liberal and Libertarian intersect in fascinating ways.

While it is an easy shortcut to see those following the unconstrained vision generally being liberal-progressives, it’s not entirely true.

The Religious Right, for example, is a perfect example of conservatives who believe in an unconstrained vision of mankind. Certainly a number of conservative religious figures have held themselves out as Bodhisattvas of a sort: having attained a personal relationship with God they now seek to bring the Word of God to everyone. And if a few misfits and sexual deviants must be ground down to achieve a Godly Paradise on Earth, well, like all unconstrained visionaries, it’s a small price to pay.

After all, to the unconstrained visionary (liberal or conservative), sacrificing a misfit few for the greater good can be as necessary as breaking a few eggs to make an omelette. Perfection waits for no man–and those who, despite the best persuasion, refuse to stand aside must instead be swept aside.

With libertarianism, nothing precludes a Libertarian Bodhisattva from arising and leading us to Utopia separate from governmental intervention: certainly one can see shadows of this in the works of Karl Marx. (This intersection helps explains what always seemed to me to be a contradiction: so-called “liberal libertarians” who want to maximize freedom even if it means using greater coercion to achieve that goal.)

And Liberals who believe in a constrained vision of mankind certainly exist: they may believe Utopia is an unattainable vision and mankind as forever outside of the Garden of Eden, but still see oppressors who need to be punished and victims who need to be saved in a perpetual and ultimately personal battle. (Those Liberals may express suspicion about “self-interest”–but only in so far as the rich and powerful have the power to run roughshod over the weak and the helpless.)

To make my own politics clear: I sympathize with the libertarian movement in that I see the world as a conflict between freedom and coercion, though I have little patience for libertarians who tend to ignore the benefits of government. I believe the principle product a government provides its citizens is trust, trust in each other (through contract laws and property laws and law enforcement officials) as well as trust for institutions and organizations. Trust is what enables us to have a modern banking system: without trust that we can get our money back from a group of anonymous individuals any time we like, we’d be stuffing our life savings under mattresses. Without trust that we can invest our money with anonymous individuals and get our investment profits back any time we like without having them stolen, we’d never invest in the stock market. Without trust that we can borrow money for the long term without having our things seized at whim, we would never be able to build large corporations that provide us with cheap food, or buy homes with long-term mortgages, or borrow to build a better future.

Trust is such a vital product–but we have so much trust in America we forget it even exists. We forget so many places in Africa and Asia fail to function not because the people there aren’t smart or have access to important resources, but because they are unable to cooperate. Because their governments are untrustworthy and fail to facilitate trust–instead siding with the powerful or with those who have guns–or worse: being powerless to act in the fact of oppression and barbarism.

I also am a firm believer in the constrained vision of mankind. Individuals improve; mankind as a species will never improve. Further, I have a particular dislike for those who believe in the unconstrained vision of mankind, because I believe to succeed in their efforts to improve mankind as a species, they must destroy those things (such as desire or personal expression) which makes man superior to mindless ants. There is a reason why those governments which have managed to get farther down the road towards Bodhisattvas implementing Utopia murder millions–and I believe any attempt by unconstrained visionaries (liberal or conservative) to implement Utopia will require them murdering millions more. It’s as inevitable as night turning to day.

So when I write above “perfection waits for no man” I do so as an observation of what I consider an extremely odious and poisonous political position. I sympathize with their beliefs, and I see their source deeply rooted in Christian tradition–such as the tradition of Catholic social teaching which leads to Social Justice. I even see the wishful thinking: after all, who wouldn’t want to create a Paradise on Earth, where we all naturally cooperate as if guided by the Holy Spirit, and with an innate and almost supernatural empathy for our fellow man?

But I see this unconstrained vision as the wellspring from which all the modern evils of the 20th century, from Fascism to NAZIism to Communism, arose.

I have always believed that if you want to venture into the realm of politics with your own opinions and want to do so in a deeper and public way beyond just grumbling about the superiority of your own Tribe in the face of other Tribes–and note I use “Tribe” here in a derisive way as a shortcut for “tribalism” and our natural hatred for those not like us–that it is worth being contemplative not only of your own positions, but of the positions of those you disagree with.

The ability to construct the counter-argument to your own positions–and do so with honesty and fidelity, rather than characterizing your opponents as xenophobic racists or stupid hippies–provides you the intellectual power to sort through questions with honesty.

It may help teach you to honestly listen to your opponents rather than characterize them as worthless idiots or as racist assholes. (It’s not to say there are worthless idiot or racist assholes out there–but they are far fewer in number than our modern political discourse would have us believe.)

It may help you see beyond your own Tribe’s blind spots.

It may help you ask the most basic political questions with honesty, and help you see the consequences of actions being taken.

Such as “so what is the end game of the efforts to remove Trump?” and “what really would happen if Trump was removed?”

And, at a deeper level:

“Is the end-game really to remove Trump? Or just to extend a 2 minute hate for 3 and a half years, in order to create political deadlock before a Democrat can run for President?”

And, if you have a greater and honest understanding of your political opponents as well as an understanding of history–and a realization that many of the themes we see today have played out in a similar way going back hundreds of years–you may be far more optimistic about the Republic and about your fellow citizens.

Even in the face of a President which offends your sensibilities and a political climate which seems to favor violence and hypocrisy.