The Pardon. The FBI. And CA-13

The return of cranky blogging.

Am I cranky right now? Oh, yes! Let’s go:

Item One: Biden pardons Hunter, and everyone freaks out.

Look, let’s get this straight. There are legitimate grounds to criticize this pardon; there are also legitimate grounds for defending it.¹

But…c’mon. To begin with: If this is a bad pardon, it joins a long history of bad uses of the clemency power from previous presidents, certainly including George H.W. Bush and Bill Clinton. But only Donald Trump has combined bad judgement with flat-out abuse of the power — and Trump has promised even more of that going forward.

Nothing that Biden could do will in any way enable Trump’s continuing abuse of the pardon power. Nor will it take away any of the strength of the criticisms of that abuse when it happens. Yes, of course Trump apologists will make bad-faith arguments that Biden’s pardon justifies whatever Trump does…but the nature of bad-faith arguments is that you can’t counter them by behaving differently, because the arguments would just shift around anyway.

Again: That doesn’t mean people shouldn’t criticize Biden if they disagree with this. Indeed, part of my crankiness over this one is folks who say Biden shouldn’t be criticized because what Trump is doing right now is worse – which is true. (See the next item!). But doesn’t mean Biden can’t be criticized as well, if you think this is wrong. Just don’t imply it will have any bearing on future bad pardons.

Item Two: No, Trump isn’t invulnerable.

Trump is planning to fire FBI director Christopher Wray and nominate Kash Patel, who has vowed to use the job to go after Trump’s political enemies.

Yes, there’s plenty wrong with this: Presidents are not supposed to fire the FBI director for partisan or personal reasons, and Patel is a wildly inappropriate choice to succeed Wray.²

While I would like to see more blunt media coverage about the plan to fire Wray, the thing I’m cranky about is folks saying that it doesn’t matter whether or not people criticize Trump over it, because supposedly Trump is bulletproof.

This is nuts! Trump spent his entire first term as an unpopular president, despite something fairly close to peace and prosperity until his final year. He was then defeated. While in office, he got his way on some things, but he was frequently defeated in Congress, by the bureaucracy, and by the courts. For example, Trump was tied with Bill Clinton for the most rejected or withdrawn cabinet-level nominations, even though Clinton had eight years and a Republican majority for six of those while Trump had four years with his party in the Senate majority.³

The mistake people are making is treating damage to a president as an all-or-nothing proposition, so that as long as the president survives in office. I blame Richard Nixon for the incorrect belief that goes back (as far as I can tell) to the Iran-Contra scandal, which broke in November 1986 and eventually sort of fizzled out, despite serious revelations of wrong-doing. But while Reagan (unlike Nixon) survived, it’s wrong to believe that it didn’t harm him. His approval rating dropped some 15 percentage points and only recovered very slowly. He lost his chief of staff and other administration officials, and lost several key fights over the next year, most obviously by having a Supreme Court nomination beaten on the Senate floor.

If there’s one thing that Richard Neustadt’s Presidential Power teaches, it’s that the influence of the Oval Office is limited – and that it grows or shrinks depending on how any particular president handles the job. Trump’s situation in his second term may be unusual. The Supreme Court has expanded his authority by allowing him to commit crimes without fear of the law, and he and his allies intend to govern by command more than any previous chief executive has done. But it’s still the case that how well they achieve their aims can fluctuate.

So yes, Trump is not going to be impeached and removed, no matter how many legitimate impeachable things he does. But whether he loses one or three or half a dozen nominees? How many and to what extent his (and his allies) policies are actually implemented? To what extent he destroys US democracy? That’s all up for grabs, and the difference between “some” and “a lot” can matter a very great deal.

And that means that people should still be outraged at the outrageous, and fight back against the unlawful, the undemocratic, and anything else they oppose. It means that each bit of damage Trump does to himself may really, truly matter. As it did during his first term.

Item three: Still counting!

The final undeclared US House seat, in the Merced and Fresno area of California, should finish counting ballots today.

Am I cranky because it’s taken a month? Nope. Oh, sure, I wish it was quicker, but I don’t see much harm in the delay.

No, what has me cranky is that no one beyond a few specialists (and credit here to 538’s Nathanial Rakish and Bolt’s Daniel Nichanian) is paying much attention. As usual. Later on, we’ll have plenty of hype for the House special elections to replace three (at least) resigned Members of the House…but right now, with an equally valuable seat up for grabs and a very close count, almost no one is paying attention.

Anyway, it’s likely that Democrat Adam Gray is going to defeat Republican incumbent John Duarte, but as I write this only 143 votes separate them. The difference is an election with either a 221-214 or 220-215 tiny Republican majority – which means (if Gray wins) a 219-215 majority when they are sworn in without Matt Gaetz on January 3, and a 217-215 majority from late January when the remaining two Republicans resign to move into the administration until April when the first of the special elections to replace them are scheduled.

Pending any other changes, which are always possible.

If you’re the Republicans, you would much rather have that extra seat. It’s a big deal! And it’s a lot more newsworthy than a lot of the political news and analysis.

1. I’m inclined to be with those who say that letting Hunter Biden off the hook would be more acceptable if Biden is generous with his use of clemency for others before the end of his term, but I think those who believe it was a poor use of the power have a fair argument as well.

2. Presidents other than Trump have not fired FBI directors with the exception of Bill Clinton, who fired William Sessions after an ethics scandal — and even then some critics thought Clinton was wrong to do so because it would tend to politicize the agency.

3. Matt Gaetz broke the tie, giving Trump the lead in failed cabinet-level picks (including those not formally nominated).