Senate Dems hit GOP on COVID-19, Trump on Russia

Top Democrats in the Senate are accusing the GOP of being "missing in action" as they push for more relief legislation to deal with the coronavirus pandemic. They're also blasting the president over his dealings with Russia. (June 30)       
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Israeli Prime Minister Benjamin Netanyahu on June 10, 2020. | Florian Gaertner/Photothek via Getty Images The politics and the potential problems ahead. It took three elections, but Israel finally formed an emergency government this spring, in the middle of a pandemic and a global economic crisis. Prime Minister Benjamin Netanyahu and Benny Gantz, of the Blue and White party, averted another election, but the deal also laid out a plan for annexation of parts of the West Bank as soon as July 1. The plan has the potential to completely upend the fragile, but unsustainable, status quo in the Israeli-occupied territory. Home to nearly 3 million Palestinians, the land makes up a critical part of any future independent state of Palestine. But the viability of that future state is complicated by the presence of some 500,000 Jewish settlers who also live in the West Bank, in settlements dotted across the approximately 2,262 square miles of territory. Under the two-state framework historically supported by the United States and the international community, the vast bulk of the West Bank would be returned to the Palestinians. As part of a final peace deal, Israelis and Palestinians would negotiate what to do about the settlements, with some heavily populated blocs near Israel’s recognized borders likely to be ceded to Israel. But peace talks have stalled for years, and there is no deal anywhere on the horizon. Instead, the Israeli right has been pushing for Netanyahu’s government to just go ahead and unilaterally annex significant portions of the West Bank that it wants to keep, making them officially part of Israel proper, regardless of what the Palestinians think about it. In January, the Trump administration unveiled its “peace plan,” developed by US and Israeli officials without the input of Palestinian leaders, who refused to participate. The plan helped create the conditions for Netanyahu to move forward with unilateral annexation, and for months, it looked as though Netanyahu was going to do it. In fact, it was supposed to officially happen as soon as July 1. But it didn’t. The United States is hesitating — and has some other things to deal with, like a raging pandemic and economic recession. Gantz, whose support Netanyahu needs to move forward, is also urging patience, suggesting Israel deal with its own growing coronavirus outbreak first. The rest of the world has also resisted the plan: British Prime Minister Boris Johnson penned an op-ed against it. Other countries, from Germany to Jordan, have condemned the move, and United Nations officials have consistently called it illegal. So the plan remains stalled, for now at least. Given all the questions swirling, I reached out to Brent E. Sasley, a professor at the University of Texas at Arlington and an expert on Israeli politics, to talk about the basics: what annexation means, why all this is happening (or not happening) now, and what comes next. He offered some historical context to explain the current dynamics and the still-present uncertainty about this moment. Our conversation, edited for length and clarity, is below. Jen Kirby I guess an obvious place to start is: What is the West Bank? Brent E. Sasley Geographically speaking, it’s literally the west bank, uncapitalized, of the Jordan River. It’s become a convenient term to use when you don’t want to refer to “Palestine” or “Israel” or “Judea and Samaria” — the latter being terms that hark back to the ancient Jewish kingdom and which the Israeli government uses formally in all of its references toward the area. For some people, it’s a non-political term because it doesn’t refer to anyone’s claim to the land. But for many, many right-wing Jews, many Israelis, and many people on the right who support Israel’s occupation, they see it as a political term because it doesn’t refer to being a Jewish homeland. Typically, most Israelis don’t see it as separate territory. They’re more aware now of the separateness of the West Bank, but for a long time, even after Israel conquered it in 1967, they didn’t. They’d talk about family members living in extensive areas of Israel, but they actually meant people living in West Bank settlements. The line itself between Israel proper and the West Bank was just not something that they saw. Jen Kirby And if that’s the Israeli perspective, how do Palestinians see it? Brent E. Sasley They would call it Palestine. Jen Kirby So when we talk about annexation of the West Bank, what does that actually mean? Brent E. Sasley So that is kind of the big question. In theory, annexation can mean anything. Netanyahu has, in the past, promised that he will connect part of the West Bank [to Israel]. He’s also talked about annexing the Jordan Valley, which is a very specific part of the West Bank. For some people, we’re talking about annexation of all of Area C. After the Oslo Accords, the West Bank was divided into areas A, B, and C. Area C has fewer Palestinians and more Jewish settlements. For some people supportive of annexation, they think that the entire area should be annexed. And the Trump plan, for example — I wouldn’t call it a peace plan — lays out specific areas. So there’s no real answer. One could argue that’s a positive thing because there’s lots of room to hash out some kind of agreement. But I actually think it’s a bad thing. First of all, the ambiguity creates space for the Israeli government under Netanyahu to get away with almost anything. Even if it does something really small and says, ‘We have now annexed this,” they’ve moved the goalposts and created language that actually embeds annexation into the discourse. They’ve now done something that makes it very difficult to reverse, and depending on where they do it, it might even be impossible to reverse. That now becomes the new norm. So that ambiguity, I think, is really problematic and dangerous. Jen Kirby So since we don’t have a precise definition of annexation, it can basically be anything that Netanyahu dreams it to be? Is that fair? Brent E. Sasley Yes, although I would add one more point to that. And that is — I don’t know if you’ve heard the term — “creeping annexation”? Jen Kirby I have, but maybe remind me what it means. Brent E. Sasley Everything that I just said is the case, but the bigger problem is that creeping annexation has been taking place since 1967. Creeping annexation refers to the gradual process by which Israel expands its control over the West Bank. That includes a whole series of factors. Israelis build settlements in the West Bank, and then Israel has to then kind of take control of that area. But to do that, they then end up building roads and infrastructure to hook those homes up to Israel proper. And then there has to be security for those settlements, because many of the settlers work in Israel, and many Israelis go to these settlements for various reasons, whether it’s to buy wine or visit family. So you end up with this whole infrastructure there. It also refers to the application of Israeli law in the settlements and often the surrounding areas. Palestinians in the West Bank have been able to use, in a limited way, the Israeli Supreme Court to dispute, for example, the route of the security barrier that Israel built. On the one hand, that sounds good, because that means Palestinians have access to Israeli institutions, and those institutions can push the government to change its policies. But on the other hand — this gets back to that ambiguity I was talking about — that means that Israeli law is applied not just to the Israeli citizens but to non-Israeli citizens, as well. So that’s part of the overall process we’re seeing. Jen Kirby So it’s a sort of de facto control, even if it isn’t formal annexation? Brent E. Sasley I mean, de facto control over much of it. Jen Kirby Why is talk of formal annexation happening right now? Brent E. Sasley I think there’s probably a convergence of factors. First, as I said, this is a process that’s been ongoing for a long period of time. So everything that I’ve said about the ambiguity and moving the goalposts and new language — yes, that would be a major change. But in some ways, it will just be making concrete what’s already been happening for a long time. Second, of course, is Trump. In order to appease the evangelical base of his support, Trump has been pushing hard to change massive long-standing conditions and to really adopt the right-wing Israeli positions regarding Jerusalem and sovereignty over the West Bank. The Trump plan comes out of that process, and so Israeli right-wingers see this as a moment in which conditions are ripe for them to do this. If you have the backing of the world’s most powerful country, then you do it. I think a third factor is that the political right in Israel has been dominant since the 2009 election, and there’s nothing on the horizon that suggests the Jewish left, the Zionist left, is in a position to challenge them in any serious, viable way. After these last three elections there was no clear winner, that’s true, but the political right and the center-right always [did far better in] those elections. The Jewish left did not do very well at all in comparison. And when I say Jewish left, I’m excluding the Arab political parties here, because obviously they don’t have a majority of support from the Jewish population. That support is what’s necessary in order to form the government. I’m not dismissing that community, I’m saying in terms of the political game, their ability to set the agenda is marginal. And then finally, I think, you have Netanyahu. When he first came to power — not in his first term, but around his second and maybe third term — he was a little bit more pragmatic. I think he was more open to negotiation. Around 2012-2013, there was a moment when Netanyahu had been pressured not to completely leave the West Bank but to put in place a series of concessions that really would have changed the game. But they failed to a wide degree. I think Netanyahu has since then become more and more bold in promoting the idea of Israeli sovereignty over the West Bank. And so I think he’s been around for so long, he’s got no serious challengers on the left, so it’s, “Look where I am, I might as well do this now.” Jen Kirby So all those factors converged for annexation to start on July 1. But then that date came and went, and annexation didn’t happen. Why does the plan seem to be stalling? Brent E. Sasley It got harder than Netanyahu thought it would be. The Trump administration started to waffle a little bit. Benny Gantz, his partner, was not as keen on annexation as originally thought, and the settlers were really upset that the plan at least created some sense, however temporary, of an actual Palestinian state. They were not happy with that. So you heard a lot of voices starting to oppose this when it came down to actually trying to implement it. Jen Kirby What would you say is causing the hesitation on the part of the Trump administration? Brent E. Sasley I’m not sure that the Trump administration has as much energy and time to focus on this issue. Obviously, there’s a lot of other stuff going on that’s kind of occupying the Trump administration, certainly its domestic energy. So it has kind of left foreign policy alone, except for Trump’s intermittent pronouncements on foreign affairs. I also think there was a lot of pressure brought to bear on the Trump administration, and again, that’s within this context of the administration being slightly distracted by other things. It just wasn’t going as smoothly as they seemed to have thought it would, or at least they weren’t able to push it as much as they thought they would. What we’ve also seen is that when it comes to really substantive issues, Trump likes to say things, and he will sometimes lend his support to ideas or policies that fit with his general ideas, but he doesn’t always put the whole weight of the administration behind him because that’s just how he makes policy — or more aptly, that’s how he doesn’t make policy. I think we’re probably seeing something of that here, too. Jen Kirby And from the Israeli perspective — or maybe Netanyahu’s perspective — how nerve-wracking is Trump’s waffling? Because it would seem Trump is the window of opportunity. Correct me if I’m wrong, but I imagine if Joe Biden were to win in November, the circumstances would change radically. But perhaps if annexation has already happened, there’s probably little Biden could do to reverse it. Do I have that right? How do you see it? Brent E. Sasley I would say there is a lot Biden could do to reverse course, but it’s unlikely he would do it. But I wouldn’t say Trump’s waffling is “nerve-racking” for Netanyahu. I would say “frustrating.” Definitely Netanyahu and his allies see this as an opportunity. But I also think they’re aware of Trump’s mercurial nature. They know what he’s like, they’ve watched, they’ve listened to him, they’ve seen what he’s done. I don’t believe that they are expecting Trump to stand firm. Jen Kirby Is there a world where Israel goes ahead with annexation without US support? Brent E. Sasley So there’s a difference between the US not supporting it and the US opposing it. So the former? Jen Kirby Yes, sure. Brent E. Sasley Yes, there is a world in which that happens. And again, you pointed out all these calculations that Netanyahu has to make, and I think that part of it is that he does genuinely believe that Israel has a right to this land, and he believes he has a role to play in getting Israel to that point. If the US opposes it, that’s a different issue. But if the US doesn’t say anything, he knows he’s got the support of some people in the administration, at least privately. He’s got the support of the US ambassador to Israel. For him, that might well be enough. Again, this is where the ambiguity comes in. It might not be, “We are now going to choose to occupy 50 percent of the West Bank.” It might be, “We are now formally going to annex these settlements,” or the Jordan Valley, or even some smaller step. Jen Kirby Given this ambiguity, do we actually know how formal annexation could happen? Is it a matter of issue, like an order? Or do troops move in? Basically, how would we know that yesterday is different from today? Brent E. Sasley Right, that’s a good question. I don’t know. I mean, it depends on what Netanyahu wants to do. For major decisions or changes in law, he would need the support of the Knesset [Israel’s parliament]. That would mean getting the support of coalition partners like [Benny Gantz’s] Blue and White party that might not necessarily be on board with everything. Like any government, there are a number of steps that could be taken to get around the need for legislative approval. It all depends on what they want to do. I know I’m not really answering the question, but I think it depends. Jen Kirby I want to talk a bit about the domestic politics of this. There was a sense that Netanyahu was using annexation as an election ploy in this latest election. But isthe Israeli public generally supportive of the move, or is it much more divided than it appears? Brent E. Sasley So as a general rule, the landscape, or the context, is that most Israeli Jews think that the West Bank is, at least in some general sense, part of Israel. Again, it goes back to 1967, when many felt Israel was threatened [by Israel’s Arab neighbors].And then that was replaced by this miracle: Israel didn’t just win [the 1967 war], but it was a stunning victory. And all of a sudden, after 20 years, the heartland of the Jewish people and Jewish history and Jewish religious aspects, all of that now is suddenly under Israeli sovereignty, and Israelis can actually go touch the Western Wall, their closest connection to the Old Temple. Ever since then, that underlying sense of religious nationalism — because religion is part of it — really connected them to the area. So you can trace polling data over time that shows how Israeli Jews think about this. And so, as a general rule — and polling data does bear this out — most Israeli Jews see the West Bank as part of Jewish history and heritage, part of its religious history. That’s the context. The Israel Democracy Institute has good polling data. The one that you should look at is the Israeli Voice Index [from July 2020]. It found that 25 percent of Israelis oppose any application of Israeli sovereignty to parts of Judea and Samaria [the West Bank], while 24 percent support applying Israeli sovereignty to all of it — so that’s roughly equal. 14 percent support applying sovereignty to large settlement blocks and 8 percent support applying it to the Jordan Valley. If you add all of that together, 46 percent — almost half of Israelis — support some element, some aspect, of sovereignty. That’s at the general level. But we also see specific responses often change. If you bring in scenarios, if you mention specific settlements or specific areas, it changes depending on how you ask it. Jen Kirby So what about Netanyahu, then? Are his political fortunes now intertwined with his promise to annex the West Bank? Brent E. Sasley He’s been talking in these terms for a long time now. The extent of what he’s been saying is something new, but the contents or the substance itself is not new. He’s been saying, since he ran against Shimon Peres in 1996, that he is better for Israel’s security, better for the Jews, in part, not just because he’ll protect them but because he does believe in a stronger, more sovereign Israel that includes the West Bank or parts of the West Bank. That’s kind of been his rallying cry ever since he got involved in national politics. So it’s not really new. I guess the answer is yes — but it’s not a new thing. Jen Kirby Since Netanyahu has been in power for so long, has his rhetoric helped solidify public opinion in favor of annexation? Maybe that’s an impossible question to answer, but I’m curious how much he’s helped shape public opinion. Brent E. Sasley I don’t think so. To some extent, we do know that often public opinion will follow what leaders say and do. In Israeli history specifically, we know that on big, security-related issues, sometimes the public will turn around and end up supporting policies that they didn’t support before if the leaders simply implement them and then just move ahead. But again, there’s a very large constituency in Israel for holding on to the West Bank or applying Israeli sovereignty in some way. And that’s not new. The right and the center-right are dominant in Israel. There is almost no other game in town. And so people who will participate in the political arena or people who vote are aware of this. They have choices, depending on their view, but again, the bulk of their choices all support what we now call annexation to one degree or another. Jen Kirby What’s the deal with Benny Gantz? It seems he’s stalling on annexation, too. Is he sort of the kingmaker here? Why does his support matter? Brent E. Sasley I wouldn’t call him a kingmaker, but yes, his agreement is necessary. He’s a partner with Netanyahu. We call it a “unity government” — it’s technically not a unity government, but he’s supposed to be the partner, the main senior partner. Without Gantz, the government could fall or would fall. His assent or his consent is absolutely necessary for there to be any progress on annexation. Jen Kirby Is it surprising that Gantz is dragging his feet? Brent E. Sasley I don’t think we should be surprised. He’s given observers a bit of a roller coaster ride. He presented himself as an alternative to Netanyahu, although, if you look closely at a lot of his rhetoric and things he was saying, I don’t think he was as much of an alternative as many people thought he was. But he presented himself as such, and said, “We’re going to stand for all these different things, none of which could possibly include Netanyahu.” Yet in the end, he goes with Netanyahu. And he agrees to let Netanyahu be in a bit more of a senior position, with Netanyahu as prime minister for the first part of their rotation agreement. That becomes very disappointing, and it looks like he’s just saying, “Yep, I’ll just do what I need to do to stay in power.” He was never a loud supporter of annexation or anything like that. The fact that he seems to be slowing it down, I don’t think that’s surprising. What will be surprising is if he flat-out said, “No. No annexation of any kind whatsoever of any part of the West Bank.” That would be more surprising. Jen Kirby Is there any risk of the government collapsing over this? Brent E. Sasley Netanyahu can’t really do anything without Gantz’s support. Unless Netanyahu has lined up other parties to support him that would equal 61 seats in the Knesset, he can’t go anywhere. That’s not to say Netanyahu doesn’t have options to pressure Gantz. But yes, it is a risk. The two were brought together out of sheer expediency. Even though the two parties share a lot of right-wing ideology, they’re not exactly the same. Blue and White sees itself as a vehicle for doing its own thing. Benny Gantz sees himself as prime minister material. He views Netanyahu as older, as someone who had his chance but who doesn’t have the same level of vitality anymore. The two parties have different perceptions of the future and what their roles are in them. That does create a context for decisions that might break the government apart. What I’m trying to say is a there is a risk of this when it comes to annexation, but as well as on other issues. Jen Kirby What about the Palestinian response? What is their position, and is there anything Palestinians can do? Brent E. Sasley I think that the Palestinians are in an extremely weak position, and they have been for a very long time. Part of that is because of decisions that they have made over time. And part of that is because Israel has been the stronger power for a very long time. So the balance is in Israel’s favor. And no other actors — neither the Arab states nor the United Nations nor obviously the United States — have been willing to really push Israel as hard as they could on these issues. And you have the Palestinians, who themselves are divided, so that weakens their position. Second of all, you have Mahmoud Abbas, head of the Fatah party, the Palestine Liberation Organization [the organization formally recognized by international bodies such as the UN as the sole legitimate representative of the Palestinians], and the Palestinian Authority [the interim Palestinian governing body in the West Bank]. Abbas has been working with Israel for a very long time on security issues, which has been to both sides’ benefit but especially to Israel. They’ve also been working together on a host of other issues related to sharing resources or economic factors. So there is this long-standing level of institutional interaction. What that has done is, in part, made the Palestinians dependent on Israel. For the Palestinians — and when I say Palestinians, I mean Fatah, the PLO, the Palestinian Authority in the West Bank; Hamas [which controls the Gaza Strip]is obviously a different issue — to now pull apart, sure they could. They could say, “Look, we’re not going to work with you on security issues.” That would be harmful to Israel and to Israelis. But it would also really hurt the Palestinians, because then Israel won’t have incentives to prop up the Palestinian Authority, which Israel depends on, but which much of the Palestinian elite does as well, the economic and political leaders, or at least the old guard among the Palestinians. The fact that Abbas has been threatening action for many, many years but never really follows through has essentially removed any credibility that his threats might be taken seriously. Again, it’s not all Abbas’s fault, and it’s not all the Palestinians’ fault — they’re just in a much weaker position and there’s no way for them to get out of that position on their own. I mean, they have been trying. They’ve been working at the international level, in international institutions, in the diplomatic and legal arenas. But there’s only so far that can go. Jen Kirby If Israel does move for formal annexation, what might the reaction be? Is there a potential for real violence? Brent E. Sasley Neri Zilber, an Israeli journalist, had a really interesting thread on Twitter in which he argued that everybody talks about how there’s going to be this eruption of violence from “the streets” or from Palestinians. Sometimes people say, “But there was no violence when Israel did this or that, like when the US moved the embassy.” And Zilber argues that the Palestinians don’t organize reaction unless there’s something really substantive and concrete. So Trump said, “Yes, the embassy is now moved.” That sounds horrific, but it didn’t really change anything on the ground. There was no need to organize any kind of violence or other kind of response. But annexation, particularly if it’s accompanied by sending settlers and troops to the West Bank or to the Jordan Valley, that would be a substantive change. And so there would probably be some kind of reaction: protests, demonstrations, maybe riots. Those are more likely under those conditions. Jen Kirby Where do the Arab states stand on this? Brent E. Sasley The last war between an Arab state and Israel was in 1973. Any war that’s taken place since then has been with what we call a “non-state actor” and Israel. In part that’s because the Arab states have lost interest in the Israeli-Palestinian issue because there’s a whole host of other things going on. It’s been so long that the old allure of what we used to call “pan-Arabism” — confronting Israel, destroying Israel, or at least removing it from parts of the area — that just doesn’t make sense anymore. You can’t do that to Israel at this point. And the Israeli economy is quite large, and it’s pretty clear that many of the Arab economies have structural problems that they have to reform. So there’s no willpower or interest in confronting Israel anymore. That’s the general context. On something like annexation, they’re not going to launch a war against Israel, like the old paradigm of conflict used to be. It is possible they could pressure Israel through the United States, through Europe, or on their own, in the UN and other places. Jen Kirby Has the pandemic played any role in how annexation has — or rather hasn’t — played out? Brent E. Sasley I don’t think so. No, I would say no — my shortest answer. But it is possible that it could make annexation difficult to pursue if the Israeli government ends up being consumed with figuring out how to stop the spread. It’s possible that would put a brake on things. Jen Kirby So if Israel goes ahead and annexes the West Bank, is this the official end of a two-state solution? Brent E. Sasley I don’t know if you follow discussions in the American Jewish community, or if you saw that Peter Beinart, he first had a longer piece in Jewish Currents, the left-wing Jewish magazine, and he had a piece in the New York Times. He argued that it’s time to acknowledge that the two-state solution is dead — and this is before annexation has taken place. Plenty of other observers, commentators, scholars, and activists have been arguing that for many, many years. I think a lot of people are struggling with that particular question. Those who believe that Israeli sovereignty should extend to some part of the West Bank, or believe that the West Bank belongs to Israel in some way, obviously they are very constant with the idea that either there shouldn’t be a two-state solution or that the Palestinians will be happy with some percentage of the West Bank and that’s fine. They don’t need all of it. There are people who genuinely believe that the Palestinians will be satisfied with some small amount of the West Bank. For others, like the J-Street types, or what we call “liberal Zionists,” it’s a fight that’s worth continuing. The two-state solution isn’t really dead, and we really won’t know it’s dead until we know. As long as things remain ambiguous and there’s no massive physical Israeli occupation of the entire West Bank and Israel does not annex the entire area and so on, in a sense the two-state solution is still alive. But I certainly think it’s a question that we need to be asking ourselves. At what point do we say that the occupation has become permanent? Does there have to be a certain number of settlers or troops living in an area before we say, ‘It’s pretty clear Israel has no intention of moving to a two-state solution?” The political right, which no longer really believes in a two-state solution, is not going to get there on its own, and there’s no one on the horizon replace them. So maybe this is the moment. And by moment, I’m not pinpointing a particular date and time, but this particular point in history, which could be 2019-2020. All that. That’s a really vague answer, but it’s a question I’m struggling with myself. I don’t have a good answer for myself, so I can’t give you one. Jen Kirby Is there any way out of this current situation? Would it be possible to work out an agreement on the West Bank without actually addressing the question of Palestinian statehood? Or are those two so intertwined that it would be impossible? Brent E. Sasley There have been plenty of plans and ideas put forward over the years, dealing with some questions now and then dealing with statehood questions later. That didn’t work. There have been other plans that say, “Let’s deal with these questions now, the final-status questions, the questions about statehood, and so on. There is a way out.” When Ehud Barak was the Israeli Prime Minister and participated in the discussions at Camp David and Taba at the end of the 1990s and in the 2000s, he proposed swapping land. Israel would annex part of the West Bank, and the Palestinians would get some part of Israel. Back then, it was a very small amount that the Palestinians would get, but that idea is out there. Negotiators and others have been talking about this for a long time. So that is an option. But at this point, it’s not really an option for the political right in Israel. Is there another way out? The only other two options out there are enormous pressure on Israel to at least halt the process of creeping annexation, or you get a change in domestic politics in Israel and Palestine. But again, we’re at this point for a reason. We didn’t just get to this point by some exogenous force that put us here. We got here because of all the changes and the choices people have made and the developments that have been going on in the region within each country and in the United States. So I’m really not hopeful. I’m not hopeful for a two-state solution at this point. I’m not hopeful for a peaceful solution at this point. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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When Roger Stone was sentenced to 40 months in federal prison for obstruction, making false statements, and witness tampering, Judge Amy Berman Jackson concluded, “He was not prosecuted, as some have complained, for standing up for the president. He was prosecuted for covering up for the president.” Stone was scheduled to be incarcerated on July 14, 2020. On July 10, Donald Trump commuted his sentence. Is this particular use of the president’s power constitutional and lawful? Many in the legal establishment maintain that it is, but we disagree.The power to grant “pardons and reprieves” includes the power to commute, or reduce, sentences after convictions. But this power is constrained by a limit: “except in cases of impeachment.” Traditionally, this exception has been read to mean only that a president cannot use the pardon and reprieve power to prevent or undo an impeachment by the House or an impeachment conviction by the Senate. By this interpretation, only impeachment charges themselves are precluded from presidential pardons. (According to the Constitution, the vice president and “all civil Officers of the United States” are subject to impeachment, which means, for example, that a president cannot pardon a federal judge’s impeachment.)But there is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, this phrase also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him. This argument is not a partisan one. Whatever rule is applied today would necessarily apply to future presidents, Democrats as well as Republicans.[David Frum: Stone walks free in one of the greatest scandals in American history]The impeachment charges against President Trump focused mainly on his alleged withholding of foreign aid from Ukraine to pressure the Ukrainian president into digging up dirt on Hunter Biden that could support Trump’s reelection campaign, and on his refusal to cooperate with the congressional investigation of this matter. But the articles of impeachment also explicitly invoke his “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States Government investigations into foreign interference in United States elections.” According to our interpretation of the pardon clause, that would mean he can’t use the pardon and reprieve power to commute the sentences of those charged with crimes related to Russian interference in the 2016 campaign—including Stone, who was convicted of lying to Congress and obstructing its investigation into Russian election interference. This obstruction impeded the ability of Congress to gather information that could have been vital to the impeachment inquiry, benefitting Trump.Our interpretation stems, in part, from the fact that the Constitution’s Framers were deeply concerned about presidents abusing power to protect co-conspirators. As just one example, regarding treason, the Virginia delegate Edmund Randolph voiced a concern at the Constitutional Convention that “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”The votes of Randolph’s fellow delegates on the wording of the pardon clause at the convention reflect the overarching concern to curb this power, though their specific intentions are unclear. On August 25, 1787, delegates voted on this matter. As it stood, the president had “the power to grant reprieves & pardon.” Unanimously, the delegates voted to insert “except in cases of impeachment” after the word pardon—the language we are familiar with today. Directly afterward, they rejected the addition of the phrase “but his pardon shall not be pleadable in bar” in a six-to-four vote.These votes reflect more than merely semantic differences. The language “his pardon shall not be pleadable in bar” was pulled directly from the British; it banned the king from pardoning officials who were being impeached, but did not prevent him from pardoning officials after their impeachment. The traditional interpretation of the meaning of “except in cases of impeachment” is that it simply removed this loophole, preventing presidential pardons both during and after impeachment and conviction. However, the Framers’ rejection of the British phrase after having inserted “except in cases of impeachment” strongly suggests that the American delegates saw the new phrase as having a meaning distinct from the traditional interpretation. If “except in cases of impeachment” already covered both of those limits on presidential pardons, why would the Framers then need to vote on whether to include the British language—language that would have merely imposed the first limit they’d already unanimously approved? Given the unclear record of what the Framers meant to do that day, any interpretation of its meaning based only on the evidence we have about the day the phrase was adopted is speculative at best.[Russell Berman: Trump’s most brazen reprieve yet]So what exactly does “except in cases of impeachment” mean?James Madison, regarded by many as the father of the Constitution, seemed to agree that the pardon power as adopted was limited—and not merely in the very narrow way that traditionalists believe. At the Virginia Ratifying Convention, the delegate George Mason argued against ratification partly on the grounds that “the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.” Here was another example of the ever-present worry of a criminal president abusing power by exonerating his accomplices. But notes taken at the convention show that Madison had a response ready; he believed that the pardon power as written already prevented this abuse: “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him … They can suspend him when suspected, and the power [of pardoning] will devolve on the vice-president … This is a great security.” Although this quote is sometimes read merely to reference the remedy of impeachment and removal, it is clear that the stripping of a president’s power to pardon those “connected in any suspicious manner” to him does not depend on a Senate conviction, after which any restrictions on presidential power would be redundant because he would be removed from office.Of course, one Madison quote alone does not resolve the question of original meaning. And we are not suggesting, as one might read Madison to be saying, that presidents must be suspended from all duties after being impeached. However, Madison’s quote shows he believed that an impeached president would lose the power to pardon, at least in the midst of his trial in the Senate. Madison is silent about whether the pardon power is reinstated after a Senate acquittal, but the fact that he emphasizes the danger of “suspected” presidents—not convicted ones—is a strong indication that one of our most important Framers would favor a reading of the pardon power that resembles our account of limits on impeached presidents.Still, traditionalists insist that Madison is wrong. They maintain that “except in cases of impeachment” means only that a president cannot use the pardon to stop an impeachment or undo its effects. This view relies on inconclusive historical evidence. The interpretation comes largely from an 1833 treatise by the Supreme Court Justice Joseph Story, but Story did not have Madison’s notes from the convention—the authoritative source recounting the Framers’ debates—because they were first published in 1840. He even admitted that his interpretation of “except in cases of impeachment” as linked to the British limit on the pardon power was not conclusively supported by the evidence, saying only that it was “probably” accurate.[Jeffrey Crouch: Our founders didn’t intend for pardons to work like this]Some traditionalists have sought to bolster their position by turning to dicta—reasoning not central to the core matter being decided—in the Supreme Court case Ex Parte Wells (1855). But there the Court largely repeated Story’s view and offered no other good evidence that could undermine our favored interpretation. Traditionalists have also pointed to Alexander Hamilton's position in “Federalist No. 69,” in which he wrote, “A President of the Union … though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction.” Certainly Hamilton may have differed from Madison in his interpretation of the Constitution’s limits on the pardon power, but even this quotation does not offer definitive proof that he felt that “the effects of impeachment and conviction” were limited to an “offender” who is actually the subject of the impeachment proceedings. Finally, traditionalists have pointed out that the Framers voted down a motion to exclude “except in cases of treason” from the pardon power. However, this vote is a separate issue: A blanket ban on pardoning any instance of treason is entirely distinct from restricting the pardon power of a president who has been impeached. None of these oft-cited sources provides a knock-down argument for the traditional view.Linguistically, the Constitution’s text is capable of supporting either reading. Given this ambiguity and the lack of historical certainty about the Framers’ intent, we should then embrace the meaning that is most consonant with the deepest purposes of the Constitution as a whole and most likely to advance the design and values it reflects. For all who read the Constitution as concerned with restraints on executive power—a worry central to the American Revolution and to many of the Framers—the interpretation advanced here is by far the most sensible. After all, the Constitution requires the president to “faithfully execute the law.” Its thrust is to insist that no one, not even the president, is above the law. It granted the president the power to pardon for acts of mercy, not self-preservation.As even President Richard Nixon’s Office of Legal Counsel recognized, the Constitution does not allow a president to issue a self-pardon. These values point toward our reading of the pardon power, which limits the supposed prerogative of impeached presidents to pardon co-conspirators connected to their impeachment.[Jeffrey Rosen: Hamilton would not have stood for Trump’s new constitutional theory]Our reading is the one most consistent with the structure of Article II of the Constitution—the article that establishes the presidency. Article II begins with a vesting of executive power that is capacious. The pardon power is the clearest example of discretionary and broad executive power. But because power so necessary in crisis could also be the most dangerous power in the Constitution if misused, the article also emphasizes the limits on the president. It concludes with the duty of the president to “take Care” that the laws be faithfully executed and the caveat that he be subject to impeachment and removal for not doing so. And the oath of office, specified word for word in Article II, emphasizes the duties and limits on the office because it requires the president to pledge to “faithfully execute the office” and “to preserve, protect and defend” the Constitution.Executive power as great as that vested in a president can be justified as consistent with the republican character of the Constitution only if presidents themselves are accountable to the law. They can be accountable only if they are precluded from thwarting legislative and judicial inquiries into their own potential abuse of power or their failure to take care that the laws and duties of the office be faithfully executed. The Framers granted such powers as the pardon only because they believed that impeachment would be a check on the office if the power was abused. That’s why the pardon and reprieve power itself has to be limited in the rare case in which its abuse subverts the impeachment check.We realize some will think we are tailoring the evidence to stop this particular president’s abuse of power. But the reading of the pardon power we advocate would limit every future president. And the limits it would impose on President Trump today illustrate how real and not merely theoretical the stakes of this debate are. This president has not been shy about his desire to use his power to shelter loyal soldiers from what he has called a “witch hunt.”Stone himself also revealed some of the strongest evidence for why this use of the pardon and reprieve power is not constitutionally valid. Shortly before his sentence was commuted, Stone said that Trump “knows I was under enormous pressure to turn on him,” and added, “It would have eased my situation considerably. But I didn’t.” Stone is the co-conspirator the Framers feared. His commutation is not a self-pardon, but it has all the hallmarks of the kind of self-regarding act feared by the Framers and prohibited by the Constitution’s text, values, and structure. Even more concerning, it involves an attempt to subvert a congressional investigation that, unimpeded, may have unearthed even clearer evidence of the president’s impeachable offenses. In the Stone case and others like it, the pardon and reprieve power must be limited because its misuse cuts at the very heart of self-governance in a republic.
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