U.S. Special Counsel Robert Mueller is reportedly concerned with the possibility that President Trump “could try to pardon people in his circle even before prosecutors charge anyone with a crime.”
In previous columns I anticipated the fact that the pardoning power would likely pose a challenge to the presently haphazard and constitutionally questionable approach Congress is tolerating when it comes to dealing with “offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of a public trust.” (Federalist No. 65) Especially when they involve the conduct of officials at the highest level of the US government, accusations respecting such offenses necessarily warrant a “national inquest,” which, as Hamilton observes, will inevitably give rise to political machinations:
The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Because they were sincerely committed to constitutional self-government, of, by and for the people, the framers of the Constitution aimed to assure that the people would be the ultimate arbiters of the politics this “national inquest” occasions. They were not content to let factional and/or partisan divisions determine the outcome. They knew that particular vested interests, and narrowly focused personal ambitions, would distort the outcome, to the neglect of the nation’s general good.
The institution of a special counsel, nominally ensconced in the Executive Branch, but supposedly empowered to investigate abuses involving its highest authorities, has little or no legitimate constitutional basis. It abandons the sensible logic that rejects the notion that the Executive Branch could simply be trusted to deal with those authorities. The task of doing so was vested, instead, in the Congress, on its responsibility to the people at large, in their role as the ultimate arbiters of the political process.
The narrative presently encouraged by all the elements of the elitist faction focuses on the interplay between President Trump and his adversaries, with the special counsel cast in the investigative role. In effect, this narrative distracts from the fact that the role the Constitution assigns to the people has, in effect, been discarded. The Constitution assigns that role to the U.S. House of Representatives, the body the framers assumed would most directly register the mind and character of the people of the United States at the grass roots. Instead, the U.S. special counsel is these days most directly involved with the U.S. Senate, which body the framers assumed would be more oligarchic in character.
Intelligent as they were, the framers anticipated possible abuse of the pardoning power if and when matters under investigation reached the occupant of the White House and/or his close associates. They suspended that power in cases of impeachment. But under present circumstances, the issue of the pardoning power is being examined as if that constitutional language does not exist. If and when the federal judiciary decides that there are limits to the president’s pardoning power in the context of the special counsel’s investigation, what will be the ultimate effect?
Because the present narrative focuses on the president, it would be logical to expect some limit on the prerogatives of that office. But in fact, the whole situation effectively eliminates the initiative and responsibility presently vested in the U.S. House. This is in line with the underlying reality of the transformation of government presently being consolidated. That transformation removes the government of the United States out from under the ultimate sovereignty of the people. Instead, it will be controlled by some combination of the president, the Senate and the judiciary – all of which now respond mainly to the elitist faction’s powers that be.
This effacement of the body supposed most closely to reflect the character and authority of the people is taking place at a time when the electoral will of the people has produced a political uprising against the consolidation of oligarchic supremacy. Thus, in the present state of things, the people are disposed to come to the defense of a prerogative the Constitution denies to the president (to pardon in cases otherwise subject to impeachment) when the people’s House acquits its responsibility under the Constitution, as written.
Is this a classic instance of using the weapons of democracy against democracy, by inducing the people to surrender the advantage the Constitution places in their hands? Once the unique initiative of the U.S. House is effectively extirpated, routine acceptance of the bastardization of responsibility the special counsel approach represents will leave factional and partisan oligarchic interests virtually unchecked.
With budget and fiscal initiative gutted by virtually untrammeled borrowing power; and the U.S. House’s initiative on impeachment superseded by the special counsel approach, won’t the most salient (and now most neglected) provisions that involve the people of the United States in the implementation of their nation’s constitutional sovereignty soon be gone?