Chess, Recounts and Presidential Pardons

Robert  Charles
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Posted: Nov 29, 2016 12:01 AM
Chess, Recounts and Presidential Pardons

Just another day in 2016.  Feints within feints within feints … that is how the world sometimes seems.  Especially politics.  Chess, or just checkers?  Complicated or just simple?  To most, the recent elections were vaguely unpleasant, old issues recast, old practices rejected, sharp elbows, too much rhetoric, jabs and counter-jabs.  Now over.  Irritating to some, elating to others, over. 

But what if … there was something more to this campaign than met the eye, more than standard politics?  Something underneath the surface, never far from the surface, not quite visible.  Not cross-allegations of hacking, foreign influence, tapes and emails, although those things shook the snow globe.  But something else.  A real, unshakable fear by one of the two candidates, a fear that the other candidate, if he should win, might actually go forward and prosecute her for … what she knows, in her heart of hearts, she did  … that were illegal.  What if that fear was large, hard to suppress, motivating and all-consuming, eventually debilitating?  And what if she lost, and then wondered more deeply, frenetically, urgently if the terrible thing would happen? 

And what if the other candidate, having raised the issue during the election, suddenly dropped it – or appeared to drop it?  What if he suddenly made nice and implied that, after all the jibes, he had no interest in pursuing charges?  What if he said so on national television?  That would certainly assuage the fears, for a time, just a bit, maybe.  Then worry would return.  Why would he do that, suddenly drop all interest?  If he had run – partially won – on a promise to fairly apply rule of law, follow facts where they led, reopen the issue under a non-political Department of Justice, potentially prosecute?  Worried minds would still fix on this … wondering.   

Could be, he just wanted to get beyond the whole issue, understanding that prosecution might look political, even if justified on facts, might  sidetrack major policy initiatives.  Could be, he felt time to leave well enough alone, time to get on with governing.  Maybe just that.  That would be, for some parties a relief.  Perhaps for others a major disappointment, but the issue would find an old chest, die in the attic.

Or could be that the president-elect is savvy, well-versed in history, wanted to reduce the chances of any preemptive presidential pardon.  Another outgoing president, concerned about another possible prosecution, pardoned an unindicted former colleague and president.  Yes, Ford pardoned Nixon – without indictment, preemptively.  True, there were articles of impeachment, but no indictment, none pending.  The presidential pardon took that possibility off the table, ended the discussion. 

If the sitting president thought prosecution of his vanquished colleague likely, he might be inclined to pardon her, even incurring possible damage to his legacy, her reputation, and their battered party.  But he would not have to do that, if the chances for indictment – of any future return to this unpleasant issue were negligible.  Statements made after the election now suggested chances of a return might, after all, be negligible. 

But then the vanquished candidate and outgoing president could be wrong.  Maybe they started thinking about all this.  Could they trust this former bitter opponent?  Could they trust calming palliatives suggesting no bad blood, no interest in doing harm, no future prosecutor?  After all, that might be exactly what the master gamesman would say, allaying fears and averting a premature blanket pardon.  He might want to lull the outgoing president into a sense of safe and tidy retreat, complete with their politically wounded colleague, then – pounce, appointing a special prosecutor. 

How could they test that theory?  Would another interview, or an overt discussion of this painful question do any good?  Would saying absolutely nothing help?  No and no, probably not.   What about having an outsider raise the issue, indirectly?  For example, what about having the independent candidate, a one percenter with no dog in the fight, poke at the victor? Perfect.  A recount could be asked by her, based on concern, say, over machine hacking.  Then the vanquished contender could join this recount, in the name of transparency.

The real aim, of course, would not be re-litigating a settled election, but something far more important – testing the victor’s antipathy toward the vanquished, and legally vulnerable candidate.  Would the victor be nonplussed, casual, barely respond?  Or he might he respond with emotion, confirming bad blood?  There was risk, of course.  By testing, the victor might become re-inclined to open the otherwise fading prospect of a special prosecutor.  He might get irritated.  That would mean that the outgoing president might, once again, have to make a tough call – that preemptive pardon.  Or just let it go and hope for the best.    

That cascades fast into other questions.  When the recount finds nothing, as it will, and the vanquished is again vanquished, wound reopened, re-litigated and again resealed … Will he still have fear?  Feel the need for a preemptive pardon?  Even if such an effort might fail for lack of specificity, overbreadth, constitutional vagueness – and mar the outgoing administration, recipient and party?  Maybe. 

Fear is irrational, and tends to be hard to suppress, especially if there is anything to support it.  Will the vanquished candidate begin pressing the outgoing president for resolution of her fear?  Will the outgoing president abide, or ignore that plea?  Will he care to make history in this strange way, going for the castling move that puts him in worse position for historians?  Or will he throw the blanket more widely, addressing wider fears, perhaps even his own?  

Is there any chance, irony of ironies, this is exactly what the incoming president wants – to rid himself of the need to prosecute, and the need to decide against prosecuting?  If the outgoing president pardons the target of continuing investigation, does that not present a clever third way – forcing blame and an inference of guilt, without having to do more than raise an eye brow? 

Who can say?  Chess is a crazy game… feints within feints within feints.  Politics can be like that, too.  Maybe, after all, this is just checkers – nothing there, no intrigue, nothing to worry about.  Hard to say.  Just another day in 2016.