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It's universally agreed that a pardon can constitute a criminal act. The question that remains on the table is what happens if the act being pardoned is an ongoing crime—meaning that sufficient components post-date the pardon that the pardon is de facto (not de jure) inoperative.
The Flynn pardon is so preposterously broad that the possibility it covers ongoing crimes Flynn has been perpetrating for years—for instance, conspiracy to commit election fraud—is high. I hope there will be discussion of how the pardon power relates to ongoing criminal activity.
One thing I hope we'll stop hearing is that impeachment is the sole remedy for a pardon that is criminal/impeachable.
Prof. Tribe's explanation—prosecution is essential—is far more plausible, as we all know that most pardons are issued far too late for impeachment as a response.
Prof. Tribe's explanation—prosecution is essential—is far more plausible, as we all know that most pardons are issued far too late for impeachment as a response.
There also needs to be an acknowledgment that pardon jurisprudence is limited in size and recency, and that we've never seen pardons of the sort Trump has issued and will keep issuing. I maintain that any analysis dating from the 1860s—not tailored to these facts at all—is inapt.
But this whole pardon conversation also happens within a larger context we cannot ignore: that law, government, and media have failed to arrest the course of Donald Trump's corruption and criminal activity for decades—and in fact the conventional wisdom of each has *coddled* him.
We must not be opaque or deceive with respect to what the precedents are in law, government and media—we must acknowledge how these institutions failed to account for the monstrous attack on democracy we're experiencing now. But we must also never let such precedents handcuff us.
Trump has taught us that we have massive abscesses in our rule of law, our democracy, and our Fourth Estate. The appropriate response isn't to rest on precedent, but to innovate our way out of the hole we find ourselves in.
Institutions must not simply adapt—they must transform.
Institutions must not simply adapt—they must transform.
I don't have the answers for how this must be done—I can only brainstorm along with everyone else. But I can also make a suggestion: when you read someone on Twitter telling you Trump has done something nothing can be done about, force them to *think creatively* about a response.
No one in or out of the law has to adopt my thinking on anything—especially as I'm simply trying to brainstorm in real time rather than lay down eternal edicts. But what *no one* in this national emergency can do is declare Trump unstoppable without proposing their own solutions.
Over the past few days, some lawyers have declared there are no situations in which pardons can be litigated—which is as good as admitting they've never tried to litigate a pardon. They've told us precedent irreversibly rules how we act now—also, that that precedent is from 1866.
I dispute little of what such lawyers have said—while noting that our current situation is novel, certain avenues of litigation have not been attempted, an honorable attempt that fails is better than no attempt at all, and most of these lawyers don't know the relevant facts here.
The lawyers in the best position to respond to Trump's past and future corrupt and criminal pardons have 3 traits:
(a) They understand pardon jurisprudence intimately.
(b) They are audacious, creative litigators.
(c) They know the Trump-Russia and Trump-Ukraine cases in and out.
(a) They understand pardon jurisprudence intimately.
(b) They are audacious, creative litigators.
(c) They know the Trump-Russia and Trump-Ukraine cases in and out.
I don't meet that first precondition—though as an attorney I have a working understanding of the Pardon Clause, constitutional law, rules of constitutional interpretation, and some of the 18th c. documents that give us a sense of the intent of our Framers as to the pardon power.
Unfortunately, Tribe aside, the voices we hear as the legal profession seeks to respond to Trump's presidency are those unwilling to think creatively or litigate audaciously—and who possess no familiarity with the complex fact-patterns underlying his historically corrupt pardons.
These voices are then amplified by the very journalists who refused or were unable to transform their *own* practices during the Trump presidency to do their work in an effective way: one that presented an obstacle to—rather than clearing the path for—Trump's attack on democracy.
We live in a time when social news platforms give us an opportunity to collaborate on a grand scale through collective research and brainstorming.
What *should've* happened here was hundreds of attorneys working *together* to creatively problem-solve our dire national emergency.
What *should've* happened here was hundreds of attorneys working *together* to creatively problem-solve our dire national emergency.
Instead, what we got over the past few days were lawyers on Twitter with nothing to offer but snark and ad hominem attacks and attempts to gain attention for themselves rather than proposing novel solutions that could start a bracing, generative conversation across Twitter feeds.
I've spent the last 3 years researching the Trump presidency, publishing 3 books on the subject that utilized 12,000 major-media citations. That research taught me a *lot* about how the way we think and research and interact and establish expertise produced the current emergency.
The upshot is this: Donald Trump presented a *novel threat* to America, and the response in nearly every profession was conventional and conservative. We continued in our usual modes and our usual thinking as America faced degradations the likes of which we had never seen before.
Those who've followed this feed for years know it's exactly the opposite of what some say: it's not a crowd-pleasing feed, it's one that repeatedly does things—like long threads—that cause consternation and upset to those who feel things (like Twitter) must be done a certain way.
I know exactly how to tweet as a lawyer in a way that'll cause other lawyers to applaud me and retweet me—after many years of legal practice, that's not a difficult thing to predict. And I nevertheless tweet threads about how to approach the law innovatively and unconventionally.
On this feed, in my Instagram live discussions, in my articles for various media publications, in my interviews on TV and radio and podcast and in print, I've consistently said that my background as a public defender prompts me to see the law through a particular (uncommon) lens.
We must figure out in this country how to ensure that a man like Trump never again has an unimpeded path to the presidency through decades of corruption and crime in business and politics. That requires us to establish equality under law in *fact*, rather than merely in rhetoric.
Creating a legal system in which we earnestly treat all persons equally under the law—ncluding the rich, famous, and powerful—is not something we have done before. And it is not something that conventional thinking has permitted, which is why our legal system is currently broken.
I'm a metamodernist. And one of the founding texts of that cultural paradigm says that true rebellion does not so much shock as lead people to snicker and laugh. When I publicly brainstorm ways I think we might rethink how we do things in law or in media, I anticipate snickering.
Those who attack this feed do so to gain followers, and they know it. Meanwhile, this exhaustive, unnumbered Twitter thread—which misuses the platform, and exposes me deliberately to ridicule—will cost me hundreds of followers. I don't care, as that's not what this feed is about.
If you want to join this public journey of brainstorming innovative ways of thinking about law, politics, and media—ways anchored in but not handcuffed by what we already know of these systems—you're welcome here. I am and will always be transparent re: how I work through things.
(PS) High-end real estate permits (by default) tax/bank fraud practices that'd get any of the rest of us arrested. And I used to represent blue-collar workers charged with "Theft By Deception"—the crime Trump commits in most of the contracts he signs with independent contractors.
(PS2) But if you say Tax Fraud/Bank Fraud should work the same for real estate developers as the rest of us, high-end attorneys say "No, but you see it's allowed..."
If you say Theft By Deception statutes apply equally to blue- and white-collar workers, again you get resistance.
If you say Theft By Deception statutes apply equally to blue- and white-collar workers, again you get resistance.
(PS3) And when Trump obstructed justice and tampered with witnesses, I drew from my long experience working cases of that sort to say that if Trump were in a state court and you or me, he'd be charged—and jailed. Attorneys for the rich said, "No, but you see this is different..."
(PS4) Here's the simple fact: if you *want* the rich, powerful and famous to have a different system of justice, they'll have one. And they'll *also* have one if you simply do nothing—or fight it half-heartedly. Changing the system that produced Trump takes passionate commitment.
(PS5) Trump is abusing the pardon system to commit crimes and impeachable offenses at a time it's too late to impeach him, and many lawyers cover for him by saying the pardon power being plenary means it can't ever *also* be a crime. And media applauds them for that old thinking.
(PS6) I don't mind folks disagreeing with me. I don't urge people to unfollow or disregard people who disagree with me. It's the opposite: I urge you to *engage* them—ask them how *they'd* creatively fight injustice. If you get a blank stare back, *that's* when there's a problem.
(PS7) My brainstorming thread on pardons caused one lawyer to compare me to Lin Wood—a dangerous radical QAnoner who claims all elections are rigged, China has invaded Maine, Schiff was just arrested, and Democrats are led by a cabal of pedophilic, Satanic cannibals. It's insane.
(PS8) Other lawyers falsely said I was "making promises" about what will happen—something I rigorously avoid doing unless we have such a large stock of evidence from major media that something is already happening that we can anticipate a through-line extending into the future.
(PS9) My point is, we can either use social media to seriously engage one another's creative/critical thinking or we can view everything as a zero-sum battle—what academics call a "dialectic"—in which we must *destroy* all other lines of reasoning rather than seek collaborations.
(PS10) Trump is the product of such pissing contests, which keep us warring with one another rather than collaborating, falling back on conventional wisdom rather than innovating. Like the snake he is, Trump slithers through the cracks of our discourse and escapes. Over and over.
(NOTE) 170 people have unfollowed this feed since I began this thread. If my focus were on gaining followers rather than standing on my principles, I'd *never* post threads—as since late 2018 they have *consistently* caused follower loss on this feed. But I'll keeping doing them.
