What Hardball Does and Doesn't Look Like
How crazy is the world right now? At least crazy enough that I managed to write an entire column last Thursday discussing the American right's gleeful approval of vigilante violence but forgot even to mention January 6th! It is truly difficult to keep track of everything at this point.
And this disorientation is not limited to simple information overload. Many people are engaged in some combination of denial, stubbornness, and wishful thinking as they treat the world as if nothing fundamental has changed. I saw one pundit gamely say, for example, that a second-term Donald Trump should be treated as a lame duck, which is so obviously detached from political reality -- to say nothing of being utterly oblivious to easy workarounds -- that one wonders how such a person functions on a day-to-day basis.
Other pundits offer the hopeful idea that "Presidents almost always lose badly in their first midterms," which requires one to imagine that voter suppression is not going to get even worse in the immediate future and that Trump and his people would allow themselves to lose power under any circumstances. As I put it in another recent column: "It is as if everyone decided not to notice that their smartphones now require a system update (or, perhaps more accurately, a new kind of power adapter) and continue to act as if the old system is just fine."
I never quite liked that analogy, but I suppose it adequately communicates the larger point, which is simply that times have -- gasp! -- changed. The best (by which I mean worst) example of that kind of failure to update came in a guest op-ed in The New York Times a few days ago. One of the sixty (!) people that Trump's pick to run the FBI had listed on what amounted to an Enemies List decided to respond to suggestions that President Biden should preemptively pardon those (and other) potential victims of future Trumpian retaliation.
This person wrote an essay under the headline: "I Don’t Want a Pardon From Biden. None of Us Should." The sub-headline was: "We should show that we trust the fairness of the justice system." But the issue is not the fairness of the justice that we have always known but whether the system under the new regime will in any way resemble the good old system that the op-ed writer assumes will continue to operate. Having an entire incoming administration, from top to bottom, saying in explicit terms that Trump's enemies are on the chopping block is apparently not enough for some people to hit the reset button.
After describing the Trumpists' hit list and noting that she is on it, the essayist wrote:
I don’t want a pardon. I can’t speak for anyone else on the list, but I would hope that none of them would want a pardon, either. If we broke the law, we should be charged and convicted. If we didn’t break the law, we should be willing to show that we trust the fairness of the justice system that so many of us have defended. And we shouldn’t give permission to future presidents to pardon political allies who may commit real crimes on their behalf.
This is beyond precious to the point of delusion. I can only think of people who say, "Why should I invoke the right to remain silent after being arrested? Why would I invoke the Fifth Amendment in court? I'm innocent!" Except that the op-ed writer is a lawyer who should know better.
And
"permission to future presidents to pardon political allies"? What planet is she living
on? Trump would never bother to ask for permission for anything, and if there ever are any future
presidents who are not dictators, the Trump years will be treated as a
one-off. Preemptive pardons are necessary now because things are different now. And are such pardons unprecedented? Yes, because (again) things are different now.
This person is by no means a household name, and although she graciously concedes that she "can't speak for anyone else" -- even as she argues that none of them should want a pardon -- she has enough bravado to write in The Times about how unafraid she is of Trumpian versions of vengeful justice. It is difficult to know whether she taking a tough public stand merely to elevate her profile, but whatever the motive, this is simply crazy talk. Even if she thinks she "should be willing to show that we trust the fairness of the justice system that so many of us have defended," she cannot be unaware of how completely people's lives can be torn apart by malicious prosecutions, even those that do not end in convictions.
The second movie in the "Mad Max" saga, the 1981 classic "The Road Warrior," includes a scene in which The Humungus, the leather-daddy leader of a murderous post-apocalyptic biker gang, makes an offer to a band of survivors who are holed up in a fortified oil refinery. He shouts: "Just walk away. Give me the pump, the oil, the gasoline, and the whole compound, and I'll spare your lives. Just walk away. I will give you safe passage in the Wasteland. Just walk away and there will be an end to the horror."
A terrified survivor says to her compatriots: "You heard what he said! It sounds reasonable! We don't have to die! All we have to do is walk away!" Everyone rolls their eyes, because obviously there would be an immediate slaughter of anyone who walked away.
Today, however, Trump and his people are not even bothering to say that he will give people safe passage into the wasteland, that walking away will end the horror. In fact, they are saying in clear terms what even The Humungus did not say out loud: They are coming after people, and there will be nothing that people can do at that point. I would like it if we continued to live in a world in which it was not wishful thinking to say things like "You’ve got a case? Prove it," as that op-ed writer did in ending her piece. But we do not live there. Not anymore.
The Republican Party's most distinctive change in the past generation (long pre-dating Trump) was the willingness to push the boundaries and play political hardball. Every step of the way, Democrats and others would wring their hands and say, "But that's not cricket!" Some of us have for years been calling on such people simply to look around and recognize that the world has changed and that Republicans are rushing past boundary after boundary.
We have, in other words, been saying that Democrats need to play hardball, too. For Biden to issue pardons for his political allies counts as an aggressive response to an upcoming hardball play by Republicans, but it would not even count as hardball on Biden's part, as I will explain below. While he still wields the powers of his office, the outgoing President can protect people -- even, apparently, people who are too committed to cosplaying a Frank Capra hero figure to notice that they are in genuine danger -- by using the powers that he has at his disposal. Once he is out of office, those powers will no longer be available to him or the people he could have saved.
As it happens, many of the issues that I have written about most frequently in the past decade or so plausibly fall into this category of playing hardball. And although Jon Stewart immediately undermined his own call for Democrats to play hardball by saying, in essence, "not that hard," it is true that Democrats and others needed to stop getting heart palpitations at the idea of, say, adding seats to the Supreme Court or getting rid of the filibuster in response to Republicans' hardball plays.
But as I noted above, not everything that the Democrats could have done would count as hardball at all. Here are just a few examples, along with an analysis of what counts as hardball and what does not.
1. The pardon of Hunter Biden. As I argued two weeks ago, the pearl-clutching on display after the Hunter Biden pardon evidenced a complete misunderstanding of what was at stake. Did the President pardon a member of his family? Yes. Did that set a bad precedent (as if all precedents are not about to be thrown out the window)? No. The Republicans had spent years in a Javert-like pursuit of a specific person who differed from everyone else in that attacking him could hurt the President himself, both politically and personally. That person did not have to be a family member, I suppose, but it certainly was a sweet bonus for Republicans.
So the precedent that was set here was this: When a person is the victim of ongoing malicious prosecution and political harassment due to his being a convenient vehicle to harm the President, and when there is every reason to believe that the other side will never stop, the President should take mercy on that person. This is not "cronyism" or anything resembling it. Most importantly, it is nowhere near the border of being outside of an established presidential power -- unlike, say Trump's claims that he could have pardoned himself before leaving the White House in 2021.
2. The debt ceiling. Professor Dorf and I have found one silver lining in the current political cataclysm, and that is that we will almost surely never again have reason to write about the debt ceiling, the "trilemma," or any of the other substantive arguments underlying our conclusion that the President would be not only permitted but constitutionally required to borrow money sufficient to prevent a default, even if the debt limit were binding.
Again, there is no longer any reason to explain yet again how we got to our conclusion, because the question here is whether our advice counts as hardball. The fact is that the conventional wisdom -- that the President would have no choice but to default on legally enforceable obligations -- was just as much hardball as the alternative. Republicans were threatening to take the unprecedented step of creating a constitutional crisis and forcing the President to choose his poison. The right response was not hardball but calling BS.
3. Government shutdowns. By contrast, several years ago I briefly dabbled with the idea that a President could prevent a shutdown -- not a debt-ceiling default but a now-garden-variety partial shutdown -- by continuing to spend even without any funds having been appropriated by continuing resolution or regular appropriations legislation. I backed off of that idea immediately, however, because there was no legal basis on which to say that a President could both enact and execute laws as he saw fit. That would have truly been hardball and then some: "I'm throwing out the Constitution because I don't want the people to suffer from a needless shutdown. What are youse guys gonna do about it?" Not just hardball. Purely illegal.
4. The Twelfth Amendment. In 2020 and again this Fall, the question arose whether the Republicans could "throw the election into the House" under an obscure provision of the Twelfth Amendment. I argued (in two pieces with Professors Dorf and Tribe as well as several pieces of my own) that the only accurate way to read the constitutional text would be for the President to be chosen by the House only when the Electoral College was tied (in a two-way race). Thus, if on January 6, 2025, the final Electoral College tally had been, say, 268 for Harris and 251 for Trump, the right answer would be that Harris would be President -- even though 268 is not 270, the number usually (though incorrectly) thought to be the cutoff to win the presidency.
It surely would have been presented -- by both Republicans and the "both sides have a point, but we'll always give the Republicans' point more credence" mainstream press -- as hardball for Vice President Harris to declare herself the winner at that point. "Oh, look at the self-dealing! How dare she?!" The fact, however, is that she would not have been pushing the envelope at all. Not even a little bit.
5. The Senate and the Garland nomination. As I noted in an earlier column, Stewart happened to mention a potential hardball play that I had described back when the Mitch McConnell-led Senate Republicans joined as one to deny hearings and a vote on Merrick Garland's nomination to the Supreme Court. McConnell had noticed that the Constitution's "advise and consent" clause does not say anything about hearings or even holding a simple vote. OK, that is definitely hardball, pushing norms beyond all recognition. But the hardball response would have been to say that the Senate's inaction constituted "failure to advise and consent by silence," essentially a default judgment when the other side to a dispute failed to show up.
One way to know that that would have been a hardball response is that it would have obviously been politically treacherous. Then-President Obama decided that the wiser course was to allow Democrats to win the 2016 election and thus put the matter to rest. Maybe if he had followed my suggestion, things would have gone even worse for his party. What we do know is that Republicans played hardball and Democrats said, "Oh well, I guess that's that."
The deeper point in all of this, however, is that even the Republicans who have wanted to play hardball did not take an anything-goes approach. The Garland embargo was based on the absence of clear constitutional language. The debt ceiling was based on the idea that debt can only be authorized by legislation. They would not have had a legal leg to stand on regarding the Twelfth Amendment, nor would Democrats have been able to say that unilateral anti-shutdown presidential actions were anything but unconstitutional. Again, the Hunter Biden pardon is the clearest example available of a non-hardball answer to a hardball play, yet the conventional wisdom quickly settled on the idea that the President's action was so-so-so-SO bad.
Why do I say that Republicans have been in fact tethered by the law, at least to some extent? Here is one example. In the first half of the Biden Administration, the US Senate was split 50-50, with Vice President Harris breaking multiple tie votes over those two years. Did Republicans claim that ... I don't know ... one of Georgia's new Democratic senators should only count as half a vote, because he won in a runoff and not in the first round? Did they say that only party members count, making Bernie Sanders and Angus King (both independents who caucused with Democrats) not eligible to vote on the body's leadership, thus giving control of committees and the legislative agenda to the Republicans?
In the lame-duck session in November-December 2020, did Republicans use their outgoing 53-47 majority to say that, because the Senate can create its own rules, they were not going to recognize the votes of half of the Democrats? As absurd as it sounds, that latter hypothetical move is very much like the hardball that Republicans are again playing at the state level in North Carolina, stripping powers from the incoming governor and attorney general, both Democrats who won statewide elections. (Republicans had done the same thing in North Carolina in 2016 as well, just as outgoing Republican statehouse majorities in Michigan and Wisconsin had done in recent years.)
The answer to each of those questions is, of course, a resounding no. Even the most lawless movement in modern American political history stopped short of simply making things up. And when Democrats face the situation that they are facing -- out of the White House, in the minority in both houses of Congress -- they will not be able to "be tough" by simply making things up, either. Even as Trump and his people break every norm (politicizing the Department of Justice, most obviously), the expectation is that this will be "legalistic lawlessness," that is, moves that the self-important majority on the Supreme Court can paper over with galling but not-exactly-illegal decisions.
Whether or not Trump's upcoming actions cross over from legalistic lawlessness to naked dictatorship, the people who are the potential victims will need every advantage that they can find. Some of those people might wish to believe that the old norms will still apply. For their sake, I hope they are right.