Good Friday Morning! It’s been a busy week in the legal field, with the President claiming he can pardon himself and a notable opinion dropping in the Masterpiece Cakeshop free exercise/free speech case. There are a few other cultural touchpoints I want to hit on as well. But I’ll start with an update on a column I wrote for the Conservative Institute. Links to follow.
New this week at the Conservative Institute
And that should tell you something about what the people operating Disney think about the average Trump voter. They believe we are just like Roseanne Barr — vile people with deplorable words and beliefs — but that, in the end, we still generally will come to agree with the progressive elites.
They couldn’t be more wrong.
Firing Roseanne Barr sets a new precedent, much like pursuing criminal charges against Harvey Weinstein gave teeth to the #MeToo movement. It’s not hard to find big-time TV hosts, actors, or journalists with large followings and problematic pasts.
The outrage invoked over a leaked memo from the president’s legal team is simply unnecessary.
Can the President pardon himself?
At the Conservative Institute, I wrote a column going through the leaked memo from Trump’s lawyers to Robert Mueller, discussing various aspects of the case. That memo boiled down to the point of whether or not the President can commit obstruction of justice if he uses a power granted to him in the Constitution. Here’s what I said on that point:
The heart of this affair is whether or not the president, when using his constitutional powers, can commit obstruction of justice. Assuming, for the sake of argument, that Trump explicitly fired Comey as a means toward ending the Russian collusion case, would that constitute obstruction?
Legally, that’s not clear, as the memo lays out:
“As you know, and as Mr. Comey himself has acknowledged, a President can fire an FBI Director at any time and for any reason. To the extent that such an action has an impact on any investigation pending before the FBI, that impact is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice here. No President has ever faced charges of obstruction merely for exercising his constitutional authority.”
On this point, the memo is right. Under the president’s Article II powersin the Constitution, he has the exclusive power to remove executive agency heads and replace them. All executive branch agencies are presumed to fall under the directional power of the Executive Branch.
The memo is also right to say the president can remove any person from these positions for any or no reason at all.
In other words, it is legally impossible for the president to violate the law when he’s using a power that gives him broad authority. It’s not that the president is above the law — it’s that the law gives the Executive Branch broad authority.
The facts we have right now say that Mueller wants to argue obstruction of justice based on the firing of Comey. That’s probably not enough because, constitutionally, Trump can fire anyone in the executive branch for any reason.
That’s not to say Trump, or any President, can’t commit obstruction of justice at all. There are things like tampering with witnesses and destroying evidence that the President can do, that aren’t constitutional powers, which could implicate obstruction of justice laws.
Trump threw another wrinkle into all of this discussion by tweeting out that he could pardon himself. And predictably, as with the memo, the social media world went mad.
Here’s the problem, no one knows the answer to whether or not the President can pardon himself. The Constitution is sparse on that point. The pardon power comes from Ariticle II, Section II, and says:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
On a purely textual basis, the only real limit on the pardon power is that of impeachment. Which makes sense, a President can’t pardon himself from a political judgment made by Congress. Impeachment is done to remove a President, and granting the executive the ability to nullify an impeachment destroys the impeachment power.
But outside impeachment, the constitution doesn’t have any limits on the pardon power. This shouldn’t be entirely shocking, at the time of ratification, there were only around three federal crimes on the books. And even a few years after that, that didn’t increase that much. But in the modern era, as the federal government has exploded in size, and the number of federal crimes along with it, the scope of the pardon power has grown with those crimes. The more statutes you have, the more things the President can pardon.
The only formal analysis of the pardon power, because there is no case law, is in a 1974 DOJ memo. The DOJ decided at the time that the President could not pardon himself, because:
Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.
This also makes sense because you don’t want a situation where the President is above the law. If the President can pardon himself, then seemingly he could do anything free from concern, outside of the threat of impeachment. That being said, the risk of impeachment is genuine if the President did pardon himself. Congress is almost compelled to act in that situation.
Unlike Mueller, who is bound by memos like one from 1974, President Trump would not get bound by the memo. It’s advisory only in that capacity and has no binding precedent. All of which brings me back to the text of the Constitution: there’s no limit.
On a textual basis, I don’t see any limitations to the pardon power. However, Congress can, and should, exercise impeachment discretion over any pardon the President issued on himself. I’m not sure I’d go so far to say that impeachment should get guaranteed in that circumstance, but I’d lean that direction. Executive power in this area is broad, but shouldn’t be considered unlimited or sacrosanct.
So can the President pardon himself?
But you’re begging for an immediate impeachment hearing.
There’s still a long way before we get to that point. We still have interesting legal questions like: Can the President reject a subpoena? Can he be forced to interview before Mueller? And many other issues.
Masterpiece Cakeshop opinion
I have a full column on CI that’s going to go live at some point today (Friday). Long story short, it didn’t change a whole lot of the legal landscape, and we’ll be right back at this exact point pretty quickly.
I wanted to highlight here two sections, one by Gorsuch who argues in favor of the baker’s Free Exercise of religion, and another by Thomas, who defends speech. First up is Gorsuch:
The real explanation for the Commission’s discrimination soon comes clear, too—and it does anything but help its cause. This isn’t a case where the Commission self- consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of “irrational” or “offensive . . . message” that the bakers in the first case refused to endorse. Ante, at 16. Many may agree with the Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U. S. ___, ___ (2017) (plurality opinion) (slip op., at 25) (citing United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.
Gorsuch’s argument here is incredibly strong and backed by case law. His argument here does two things. First, it sets up the stage for the next round similar cases by stating unequivocally that the court cannot judge a person’s religious beliefs — something Ginsburg and the Colorado Commission do in these cases.
Second, he connects speech and free exercise in a way that emphasizes the need to protect both. Speech has stronger protections under First Amendment law compared to religion. By linking the two, he’s strengthening the religion clauses.
Next, Thomas lays the groundwork for the free speech arguments:
Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “‘I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.’” App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. See Hurley, supra, at 574–575; Dale, 530 U. S., at 644; Snyder v. Phelps, 562 U. S. 443, 448 (2011). Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “‘Bury the n*****s,’” Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam).
Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), somehow diminish Phillips’ right to free speech. “It is one thing . . . to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled to express a different view. Id., at ___ (ROBERTS, C. J., dissenting) (slip op., at 29). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.” Id., at ___ (majority opinion) (slip op., at 4). If Phillips’ continued adherence to that under standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. See Dale, supra, at 660 (“[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view”).
In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.
Thomas masterfully weaves in and out of various veins of free speech thought to drill down the inconsistencies demanded by the liberal wing of the court. Ginsburg and Kagen both seem bent on giving special protections towards the “new orthodoxy,” but that doesn’t square with any prior precedent.
Neither Kagen nor Ginsburg makes persuasive arguments against Gorsuch and Thomas’s concurrence. Kennedy’s opinion has negative language towards forced or compelled speech, which could help in protecting religious freedom.
So while Masterpiece Cakeshop doesn’t bring much new to the table for a new law, it does do an incredible job of foreshadowing the next round of arguments.
Fox News forced to apologize for disparaging Christian athletes
One of the more frustrating stories I saw during the week was Fox News running a hit piece on the Philadelphia Eagles after President Trump rescinded an invitation to the White House. Trump said he revoked the invite because of the kneeling during the anthem issue.
Fox News, in turn, ran a segment on the story that featured kneeling athletes, implying that everyone shown knelt during the anthem. The problem is that no one on the Eagles team knelt this past season. Every single shot Fox used was of religious athletes praying with teammates and opponents before and after games.
They sent out Shannon Bream for the official apology:
The misrepresentation came after news broke of President Donald Trump’s decision to cancel the Eagles’ trip to the White House—a tradition for a championship-winning team of a major sport.
“Last night during our report about the president canceling the Philadelphia Eagles trip to the White House to celebrate their Super Bowl win, we showed unrelated footage of players kneeling in prayer,” Bream said on air.
“To clarify: No members of the team knelt in protest during the national anthem throughout [the] regular or post-season last year,” she added. “We sincerely apologize for the error.”
I get pushing narratives is what all cable news shows do these days, but this was unquestionably below the belt. And to disparage athletes praying on the field, something we should encourage more of, was beyond the pale. I’m glad they apologized, but a segment like that gets cleared by a lot of people before it hits the air. They knew what they were doing.
A brief rant on gun violence and homicide rates
One of my pet peeves on gun debates is when people call for gun control to decrease gun violence and then point to other countries that banned guns and have less gun violence as proof.
It’s irritating because it’s a bad comparison. Gun violence is a form of assault, battery, and homicide. If you’re using a gun for those purposes, you’re engaging in a violent crime. So yes, if you get rid of all guns, that would mean fewer incidences of assault, battery, or homicide involving a firearm. But that doesn’t mean your overall violent crime rate drops.
People conflate lower gun violence with a lower violent crime. That’s not necessarily true.
Take this list, on Wikipedia, of every country’s homicide rate per 100,000 people, with the number of guns owned per 100 residents. The US easily has the highest gun ownership rate. But the homicide rate is nowhere near the top.
On that front, London recently overtook New York City in having a higher murder rate. That led the BBC to launch news pieces asking what the UK should do about the rising violent crime rate there. The crime wave has gotten so bad that UK politicians have called for a knife ban and are urging citizens to turn knives into the police.
In other words, the UK banned guns, confiscated them, and all they’ve done is shift the tools murders use in violent crimes from guns to other weapons.
And when people falsely conflate gun violence and homicide rates, it’s a rhetorical trick to make it seem like they care about homicides. When in reality, they can’t prove they’ll reduce overall homicide rates, only the type of tool used in a murder.
Links of the week
Letting Labels Do Your Thinking – Jonah Goldberg, National Review
Bill Clinton’s Lessons – Jim Geraghty, National Review
The World As It Wasn’t: Barack Obama’s revealing reaction to Donald Trump’s victory – Matthew Continetti, The Washington Free Beacon
Beef Supremacy in Portland – Kevin D. Williamson, National Review
How to Define a Wave – Amy Walter, The Cook Political Report
Softening Claims of the Marshmallow Test: New findings on “marshmallow test” suggest that adults should consider deeper interventions than simply training kids to resist temptation. – Greg Toppo, Inside Higher Ed
After Kate Spade’s death, think of the survivors – Bethany Mandel, The New York Post
Jews and Muslims find a common enemy in defending their religious freedom — a misguided effort to ban circumcision in Denmark – Daniella Greenbaum, Business Insider
Anything for the Ayatollah: The law is no obstacle. – Sohrab Ahmari, Commentary Magazine
Satire piece of the week
SAN ANTONIO, TX—According to sources, local man Greg Harding, who volunteered as a soccer and baseball coach and handed out hundreds of participation trophies throughout his tenure, launched into a long rant about “this generation” and how “these millennials don’t appreciate hard work.”
“I don’t know where they get this sense of accomplishment for doing absolutely nothing,” said the older man who had passed out truckloads of participation trophies, runner-up ribbons, and other meaningless awards to his kids and their teammates for decades. “I tell you what, they’re in for a rude awakening in a few years when they’ll have to be responsible for the trillions of dollars of debt racked up by politicians I voted for.”
Thanks for reading!