Pardon Me
Making Justice Personal
Here’s the video of a book talk I did with CNN’s Jeffrey Toobin this past summer on his book “The Pardon: The Politics of Presidential Mercy.”
We spent some time discussing what makes a “good” pardon as opposed to a “bad” pardon. One distinction I suggested is that when a president acts personally, pardons tend to be haphazard, self-interested, and generally bad. When a president acts more as a representative of the executive branch, and pardons flow from a sense of public policy, and a sense of keeping up with political and social currents, they tend to be more systematic, policy-driven, and generally better.
Toobin pushed back a little, but that distinction is actually the core of “Unmaking the Presidency: Donald Trump’s War on the World’s Most Powerful Office,” written by Ben Wittes and Susan Henessey in 2020 and still, I think, one of the best descriptions of what Trump was actually trying to do in term 1 and is doing in term 2.
As the NYT put it:
Hennessey and Wittes, who edit the blog Lawfare, argue that Trump is pursuing a “vision of the presidency” that’s all his own. Not that this “vision” requires much expenditure of effort on the president’s part; Trump, just by being Trump, “elevates the expressive and personal dimensions of the office.” This is the authors’ careful way of saying what they eventually conclude: that Trump wants the executive to look more like an absolutist monarchy, with all of the glory and unfettered power that entails.
Their argument is that rather than situating the presidency as an executive management job within the Executive Branch of the federal government, Trump sees the presidency - and the Executive Branch as a whole - as personal power vested within himself. We see this in terms of the independence or lack thereof of the Department of Justice and Federal Reserve, and in many other ways.
Pardons are one of those ways. Notably, Trump has almost entirely ended the Office of the Pardon Attorney, which used to try an establish uniform and sensible guidelines (not mandated by the Constitution or always implemented) for which clemency cases would come before a president. The point of the office was to systematize how the power is used in a predictable, process-driven way. The point is that now there is no process, which means pardons are more likely than not to be based on access and personal interest.
I was thinking about this in terms of an old sermon I’ve reused in a few contexts about Simeon and Levi’s confrontation with Jacob following the sacking of the city of Shekhem in response to the abduction of Dinah.
(It is depressing to see that even 10 years ago I was speaking about tag mahir (so called “price tag”) attacks on Palestinians by Jewish vigilantes. This is not new, and it is awful that we’re still mostly talking about it as though it is a relatively recent development. It is not.)
Here’s the post-October 7 version, focusing on Hamas and the Gaza Strip, delivered at the very beginning of the war:
One of the rabbinic sources on this topic is Maimonides, who takes a strikingly (shockingly?) extreme position (Laws of Kings and War 9:14):
וְכֵיצַד מְצֻוִּין הֵן עַל הַדִּינִין. חַיָּבִין לְהוֹשִׁיב דַּיָּנִין וְשׁוֹפְטִים בְּכָל פֶּלֶךְ וּפֶלֶךְ לָדוּן בְּשֵׁשׁ מִצְוֹת אֵלּוּ. וּלְהַזְהִיר אֶת הָעָם. וּבֶן נֹחַ שֶׁעָבַר עַל אַחַת מִשֶּׁבַע מִצְוֹת אֵלּוּ יֵהָרֵג בְּסַיִף. וּמִפְּנֵי זֶה נִתְחַיְּבוּ כָּל בַּעֲלֵי שְׁכֶם הֲרִיגָה. שֶׁהֲרֵי שְׁכֶם גָּזַל וְהֵם רָאוּ וְיָדְעוּ וְלֹא דָּנוּהוּ. וּבֶן נֹחַ נֶהֱרָג בְּעֵד אֶחָד וּבְדַיָּן אֶחָד בְּלֹא הַתְרָאָה וְעַל פִּי קְרוֹבִין. אֲבָל לֹא בְּעֵדוּת אִשָּׁה. וְלֹא תָּדוּן אִשָּׁה לָהֶם:
How must the Noachides fulfill the commandment to establish laws and courts? They are obligated to set up judges and magistrates in every major city to render judgement concerning these six mitzvot and to admonish the people regarding their observance.
A Noachide who transgresses these seven commands shall be executed. For this reason, all the inhabitants of Shechem were obligated to die. Shechem kidnapped. They observed and were aware of his deeds but did not judge him.
A Noachide is executed on the basis of the testimony of one witness and the verdict of a single judge. No warning is required. Relatives may serve as witnesses. However, a woman may not serve as a witness or a judge for them.
According to Maimonides, as later sources discuss, the destruction of the city of Shekhem was not extra-judicial violence - it was actually fully lawful. Simeon and Levi were qualified judges, and they witnessed the lack of order in the city. Jacob seems aware of this, they say, when he chastises them on the basis of his fear of retaliation, perhaps accepting the basic justice of what they did.1
I think that Wittes and Hennessey would say that a key part of the narrative within the Maimonidean framing is the mixing of the legal and the personal. There is a difference between the liability of the city of Shekhem and Dinah’s family personally becoming the judges, witnesses and executioners in achieving justice for her abduction.
There is an echo of the brothers sitting in judgment over Shekhem and then carrying out their own verdict in the targeted prosecutions and pardons that serve no greater interest except the personal interests of Trump and his inner circle. Even if Comey and James have broken the law, the legal process has already lost credibility by being so personalized. That could be Jacob’s response to Simeon and Levi as well. By acting as they did, they destroyed the credibility that they would need to justify what they had done. Instead, they made it purely about power.
The unchecked pardon power of the president is perhaps the most undemocratic feature of the federal government, and it is being used in a way that only accentuates its undemocratic nature. Democracy is at its best when public officials see themselves as custodians of the law and their high offices, not when they attempt to embody them.
Similar motif in the rabbinic sources who say that the brothers sat in a rabbinical court of law and judged Joseph before selling him into slavery.