Today has been a day of hand wringing over the Trump legal team’s claim of absolute presidential right to open and close investigations, and to pardon anyone he chooses, including himself, for any reason.
I would like to put this discussion in context. So let me begin by telling you a story.
John Doe comes to realize that he is the reincarnation of a high priest of Quetalcoatl, and that it is his destiny and his duty to assume the office of high priest himself. Accordingly, Mr. Doe constructs a shrine to Quetzalcoatl in his spare bedroom, and begins to lure people into his home, find some means to render them immobile, drag them into the bedroom/shrine, cut out their hearts, and offer sacrifice to the deity.
When Mr. Doe is apprehended, his counsel defends on the basis of the free religious expression clause of the First Amendment.
With this hypothetical in mind, let us pose a few questions.
Is the worship of Quetzalcoatl a religion? Yes, it is, or at least it was.
Is it (was it) incumbent on Quetzalcoatl’s worshipers to perform human sacrifice from time to time? Yes.
Is Mr. Doe a true believer in Quetzalcoatl and his religion? Who the hell knows, but one must assume an affirmative answer.
So when Mr. Doe killed all those people, was he exercising his religion? Yes, he was.
What does the Constitution say on the subject? It says, and I quote, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Is there an exception in the words of the Constitution for religious expression that involves human sacrifice? No, there is not.
Has the Supreme Court ever ruled that the First Amendment does not permit human sacrifice as a form of religious expression? No it has not. There is a case permitting chicken sacrifice as a religious ritual. But killing chickens for non-religious reasons is lawful, so it was not a challenge for the Supreme Court to reason that killing them for religious purposes must also be kosher.
Well, then, if the literal language of the Constitution affords an unfettered right to express oneself religiously, and if the Supreme Court has never dealt explicitly with an implied human sacrifice exception, isn’t it at least possible that the Supreme Court might find that Mr. Doe has a good defense to the charges against him? No, it is not. You would have to be a bloody idiot to think so.
But if the asserted legal defense is so ridiculous, then why did Mr. Doe’s lawyers assert it? BECAUSE THE FACTS WERE SO BAD THAT A REALLY RIDICULOUS ARGUMENT WAS THE ONLY ARGUMENT THEY HAD.
How does all this relate to Trump’s legal position? Trump’s position that he has the absolute right to pardon anyone for any reason implies that he has the power to announce in advance that he will pardon people who commit crimes of which he approves. In practice, this would imply an absolute ability to rewrite the criminal code to his liking, without a by-your-leave from anyone else.
For example, pictured below is Louis XIV (“L’etat c’est moi”) revoking the Edict of Nantes in 1685—after which French Protestants became outlaws, liable to being killed with impunity.
Trump is asserting that, as a matter of constitutional law, L’etat c’est Trump.
Should we be fearful because Trump has asserted such a ridiculous legal position? Probably, but at the same time we should feel a sense of relief. That’s because when you adversary embraces a position that is ludicrous on its face, it’s a sign of weakness and desperation.
If Trump’s legal position is ludicrous on its face, then why did his lawyers take that position? BECAUSE THE FACTS WERE SO BAD THAT A REALLY RIDICULOUS ARGUMENT WAS THE ONLY ARGUMENT THEY HAD.