Self-pardons, pensions, and other burning questions
It's all up to the Senate
At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.
— Abraham Lincoln, January 27, 1838, Lyceum Address
On Inauguration Day, 1909, Washington, D.C. was blanketed in ten inches of snow. Wind whipped through the city, felling trees and telephone poles. Temperatures rose and fell throughout the day. Whether it was snow, melt, slush, or ice, movement was all but impossible; cars were buried, trains delayed, streets pathless. 6,000 men and 500 wagons cleared the way for the traditional parade, but waving from an open carriage is quite different than taking an oath of office. William Howard Taft remains the only president to be inaugurated in the Senate Chamber: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
No one saw the blizzard coming in 1909. We can’t say the same for the violence on January 6, 2021 or the potential for more on January 20, 2021.
I’ve been asked about the history of private inauguration ceremonies a lot this week. In fact, I’ve received the same queries over and over again, each specific and urgent, so I thought it would be useful to answer some of them here.
Can Trump pardon himself?
Richard Nixon’s lawyers looked into a self-pardon and concluded he could not. Trump’s lawyers seem to have reached a different conclusion, or so he claims, insisting he has the right to pardon himself. Some have speculated he won’t, because a self-pardon is an admission of guilt, and by now we know Trump will deny any and all wrongdoing, so I’m not sure that argument holds up. It’s also unclear how the courts — in particular, the Supreme Court — would rule on the constitutionality of a self-pardon. I started the week thinking the likeliest outcome was a last-minute resignation, which would allow Mike Pence to pardon Trump, but now I don’t think he’s confident a President Pence would pass that loyalty test.
A presidential pardon has limits. It won’t protect Trump from state crimes, and both Letitiia James, the Attorney General of New York, and Cyrus Vance, the District Attorney of New York County, are investigating Trump’s and the Trump Organization’s financial dealings, and they seem highly motivated to pursue him.
I’m best on the past, but this seems like a safe prediction: Trump will pardon family members who have “worked” in the White House.
Now that Trump has been impeached twice can he run for president in 2024?
Yes. Impeachment doesn’t disqualify a president from running for office. It’s the first step. If two-thirds of the senators present vote to remove Trump, they could hold an additional vote to bar him from the presidency in the future. (In that case, only 51 senators would be required to approve.) At least, that’s what we think. No president has ever been removed from office by the Senate, and none has been disqualified.
Will Trump lose his pension?
Only if the Senate votes to remove him from office. The Former Presidents Act otherwise guarantees a pension until death. The same goes for lifelong protection from the Secret Service.
Is our democracy stable?
But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, “Stand and deliver, or I shall kill you, and then you will be a murderer!”
— Abraham Lincoln, Cooper Union Address
We claim we are exceptional. We are not. But we have the potential to be.
—Chase Iron Eyes, citizen of the Standing Rock Sioux Tribe and lead counsel for the Lakota People’s Law Project
American exceptionalism — the idea that the United States is inherently different, as in better, purer, greater than other nations — is an ahistorical delusion. Our democracy is as vulnerable as that of any other country. The only thing that differentiated our democracy from others was an uninterrupted history of peaceful transfer of power, which Trump ended after 233 years.
Eight senators and 139 representatives, for a total of 147 Republicans, voted to overturn an election with no evidence of voter fraud hours after Trump supporters stormed the United States Capitol. To stop the imminent threats to our democracy, we need a broad tactical alliance, and we don’t have one. Or, as Konstantin Kosachyov, a senator in the upper house of the Russian parliament and chair of its Foreign Affairs Committee, put it: “[I]t is clear that American democracy is limping on both feet. America no longer charts the course and so has lost all right to set it. And, even more so, to impose it on others."
Will Donald Trump’s January 7th concession speech discourage loyalists from further violence?
There is no grievance that is a fit object of redress by mob law.
— Abraham Lincoln, Lyceum Address
I don’t know what will happen next, but I do know this: If he’s judged against every other president in American history, that three-minute video simply wasn’t a concession. He never even mentioned Joe Biden’s name.
See you on the other side.
On a related note:
On Monday, I was on a panel about the presidency with Heather Cox Richardson, Valencia Abbott, and Jeremi Suri, moderated by Sara Georgini, at the Society for U.S. Intellectual History. The theme of this year's conference is “Revolution & Reform,” which may be of interest.