Dear Reader (Including Ben Sasse who is, sadly, transitioning to Florida Man),
Last week, I once again floated my admittedly flawed and extremely unlikely idea of Joe Biden pardoning Donald Trump in exchange for Trump never running for public office again.
I got a lot of criticism for it, and that’s fine. Again, it won’t happen and it has a lot of drawbacks. But I didn’t fully explain why I think it would be preferable to a lot of other options. Don’t worry, I’m not going to dwell on this, I’m just trying to set up a different topic. So as Frankenstein said when he took a grizzly with him as his plus-one to a party, bear with me.
I think having Trump be the Republican nominee would be terrible for—in no particular order—the country, conservatism, and the Republican Party. But as bad as all that would be, it pales in comparison to how bad it would be for the country if he became president again.
Most of the accomplishments people attribute to Trump were achieved largely in spite of him. He had people around him—let’s call them grown-ups—who kept things on the rails. I’m not saying they were all heroes, but I’m also not saying they were all sellouts either. They’re a mixed bunch. Just consider William Barr. Many of his detractors insisted he was nothing but a Trump yes-man and enabler, but it turns out things were much more complicated. Like so many in the Trump administration, he believed he could ride the orange tiger for the good of the country and the conservative cause.
When Trump wanted Barr to help him in his scheme to steal the 2020 election, Barr said no. Instantaneously, he went from being a hero of the Trump right to a villain. Before him, Jeff Sessions, John Kelly, James Mattis, John Bolton, and countless others were good guys—in Trump’s eyes—until they refused to be his enabler on one scheme or another.
But here’s the thing: Whatever you think of these people, they would not staff a second Trump administration. He would surround himself with toadies, demagogues, psychos, lickspittles, and pillow salesmen. The only qualification Trump and the Bannonites would care about is personal loyalty to Trump. His judicial picks wouldn’t come off any Federalist Society list, but from the list of hacks and nutters who populate OAN and Newsmax. Remember, he feels betrayed by his Supreme Court picks because they didn’t cooperate with his scheme. If you think the Mar-a-Lago search was banana republic stuff, you haven’t seen anything yet. He’s already said he wants to pardon January 6 rioters and give them a formal apology. Look at what has happened to so many institutions of the right, just since he lost the election. The damage of a second Trump presidency is incalculable to me.
What pardons are for.
That’s why I see my pardon deal as attractive. Almost the whole point of the original pardon power was to pardon people for treason. That’s because there were only three crimes mentioned in the Constitution: piracy, counterfeiting, and treason. Remember, this was a new country that had just fought a revolution that divided whole communities. There were lots of militias around with very passionate views about the role of government. The pardon power was deemed crucial to get people to lay down their arms. Not everyone agreed. George Mason warned that “the President of the United States has the unrestricted power of granting pardons for treason; which may sometimes be exercised to screen from punishment those whom he had secretly instigated to commit the crime and thereby prevent the discovery of his own guilt.” Sounds familiar, eh?
But the argument that won was that the president should be able to pardon treasonous behavior in order to, in Hamilton’s words, “restore the tranquility of the commonwealth.”
In short, the pardon power is a tool of statesmanship. Think of it like jury nullification. I’m pretty skeptical of jury nullification in most instances, but sometimes the law is inadequate to the question of a greater justice. For instance, I am at a loss to justify Mike Pence’s actions on January 6 on purely constitutional grounds. For about three hours, Pence was the president of the United States, instructing the military to deal with a riot at the Capitol. The problem is, nothing in the Constitution gives the vice president that authority. Trump wasn’t incapacitated, he simply refused to act because he wanted to see whether the riot might play out to his benefit. Or, if you want to be generous—which I am not inclined to do—he was simply frozen with petulant indecision. Either way, nobody invoked the 25th Amendment. Pence just simply stepped into the breach in a way that technically violated the Constitution, but he did so for good reasons, reasons that can only be described as statesmanship.
Still, I think the fact that Trump forced Pence into that situation is part of the greater indictment of Trump’s actions that day. What Pence did could be a terrible precedent. I can come up with all sorts of scenarios in which a future vice president could step into the breach with very bad motives claiming Pence’s actions as a precedent. Again, Pence did the right thing, but the right thing has costs. Lincoln never conceded that his suspension of habeas corpus was illegal, but he did argue that even it was illegal, it would still be the right thing to do.*
A pardon done right, under the right conditions, would be an act of statesmanship. A kind of one-man preemptive jury nullification letting Trump off the hook for—as of now mostly hypothetical but potentially real—crimes. That would have costs, too. But I think the alternatives make those costs preferable.
The cult of experts.
But let’s talk about statesmanship outside of the context of Trump. Because if you think you have Trump fatigue, I have Trump narcolepsy.
Elon Musk recently tweeted a fairly gross and stupid proposal for ending the war in Ukraine. His solution? Let’s have a “real” referendum in the annexed territories of Ukraine administered by the U.N. It’s gross because the Russians have murdered, displaced, or kidnapped hundreds of thousands of Ukrainians from these areas. His proposal erases those deaths and ignores those facts. I suppose I’d be more open to it if every dead or exiled Ukrainian was automatically counted as a vote for staying in Ukraine. It’s stupid because Musk has a thumbless grasp of the political reality on the ground. He looked at some election return maps from 2013 and deduced that he understands the aspirations and desires of Eastern Ukrainians in 2022. As many have pointed out, even his reading of the maps was wrong. To be clear, I admire Musk for many of his accomplishments. But knowing how to get a rocket into orbit or an electric car to market doesn’t make you a Ukraine expert.
We discussed this on The Dispatch Podcast the other day and David French reprised his longstanding gripe about the billionaire cult in America today. A bunch of people think that being very successful at X qualifies you to fix Y or Z. Among this population are some billionaires. To paraphrase David, “I created PayPal, so now let me explain to you how to solve race relations in this country.”
This is just the latest iteration of a very old idea in American politics. If you listen for it, you’ll hear someone say almost every day, “The government should be run like a business.” This was Trump’s argument in 2016, but we’ve been hearing some version of it for a very long time. It was part of Herbert Hoover’s pitch, though he also leaned pretty heavily on his status as the “Great Engineer.” In the Progressive Era, engineering was seen both literally and figuratively as the key to political reform. “Social engineer” has a negative connotation today, but it didn’t back then. Musk isn’t running for president—constitutionally, he can’t—but he inhabits a Hooverish place in the popular imagination—and his own.
The thing is, the government can’t be run like a business—or an engineering project—because it isn’t one. British philosopher Michael Oakeshott distinguishes between a civil association and an enterprise association. Businesses, charities, militaries, and countless other organizations are enterprise associations because they are inherently managerial with clearly defined goals, metrics, and deliverables. Civil associations lay out the legal framework for membership but are silent about what members pursue. Put more plainly, an enterprise association is concerned about ends—the product, be it a widget or spiritual salvation. A civil association is the rules of the game. It’s a bit of a strained and faulty analogy, but the Yankees are an enterprise association while “baseball” is a civil association. The Yankees care about deliverables—i.e. wins—and “baseball” describes the context of those wins. Major League Baseball has elements of both. It has deliverables—ratings, attendance, etc.—but it also works to ensure the game is played with integrity and by the rules. So long as people keep showing up to games or watching TV, MLB doesn’t have a stake in who wins and who loses.
For Oakeshott, politics should be conducted like a ship with no final destination: “men sail a boundless and bottomless sea; there is neither harbour for shelter nor floor for anchorage, neither starting-place nor appointed destination. The enterprise is to keep afloat on an even keel; the sea is both friend and enemy, and the seamanship consists in using the resources of a traditional manner of behaviour in order to make a friend of every hostile occasion.”
My friend—and personal Oakeshott tutor—Doug Brosz has been pestering me for years to dump the “left-right” paradigm for the Oakeshottian civil-vs.-enterprise scheme as the Rosetta Stone of politics. He has a good point. Because as Oakeshott argued, all totalitarian and authoritarian regimes—regardless of ideological or theological flavor —operate as enterprise associations. Whether it’s Calvin’s Geneva or Lenin’s Soviet Union or Hitler’s Germany or Khomeini’s Iran, the idea is to direct the whole of the people toward a single unified goal.
No doubt in part because I’ve read more Burke than Oakeshott, I’m still partial to the Burkean formation. Burke believed that the state exists to create space for society and individuals to flourish on their own terms. His intellectual adversary, Thomas Paine, believed that the state should be like a shepherd marching everyone in the same direction to the utopian sunny uplands of History. Yuval Levin rightly argues in The Great Debate that these two worldviews define the difference between right and left in the Anglo-American tradition. Alas, if things keep going in the direction they’re heading on the American right, he may need to update the book, because a lot of people on the right have been seduced by the idea that the government should operate like an enterprise association.
Which brings me back to this idea of running government like a business. As Oakeshott would be the first to concede, all existing governments necessarily have elements of enterprise associations to them. Sanitation workers, soldiers, and social workers all have obvious deliverables. I want most government agencies to behave like enterprise associations and, as I keep saying, people would trust the government to be more ambitious if it wasn’t so crappy at doing the stuff it’s supposed to do. But a free society requires that the people at the top offer their first loyalty to the concept of civil association. As a free-market guy, I want the government to be supportive of business and commerce. But barring some very clear and specific national security consideration, I don’t want it to support any specific businesses. I want the government to be supportive of religion, but I don’t want it to support a specific faith. Christian nationalists disagree.
More concretely, presidents aren’t the boss of the government the same way CEOs or owners are the bosses of businesses. By design, the president has exactly zero formal power to boss around a senator, congressman, or governor. They have independent power and authority and, put crudely, different bosses. The people who elect a governor aren’t necessarily the same people who elect a president or senator. The president can fire people in the executive branch, but that’s it. Heck, he can’t even fire the vice president. Joe Manchin’s (temporary) defiance of Joe Biden enraged a lot of Democrats, but Manchin was under no obligation—other than some misbegotten notion of party loyalty—to do what the president wanted. Armies and grocery stores don’t work like that. Kings and dictators can boss everybody around. In America, the defining ethos of our political order is that politicians aren’t the boss of me.
Statesmanship is really just a word for politics at a very high level. And politics is very different from management. Obviously, there’s politics at play in corporate boardrooms, war rooms, and executive suites, but these are wildly constrained by a fairly narrow and unified incentive structure. Every manager profits from profit, every general from victory. The idea that a businessman—or businesswoman—can seamlessly take their skills and apply them to politics is a category error because we’re all stakeholders in government. And the stakeholders don’t all agree on what the deliverables should be. What all stakeholders should be able to agree upon are the rules. Yankees fans and Red Sox fans disagree on many things, but they all agree that the batter is out at three strikes or if his pop fly gets caught.
There are lots of books that try to define statesmanship. For me, it boils down to doing what’s required to ensure the Oakeshottian ship stays on course when the wind or currents blow in the wrong direction, or when the crew wants to pull into harbor in pursuit of treasure. The vast majority of the time, that means making sure the rules are followed even when doing so is politically inconvenient. As Lincoln said, “Let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty.” But he also said to those who charged that his suspension of habeas corpus was illegal that even if that were true — a claim he rejected* — “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
Businessmen, engineers, and generals can all go on to make good presidents. But what makes them good presidents is a broader and more capacious wisdom than the mere expertise that made them successful at their prior vocations. That wisdom is called “statesmanship.”
Various & Sundry
*Author’s Note: An earlier version of this implied that Lincoln conceded that his suspension of habeas corpus was illegal. He did not. I regret suggesting otherwise.
Canine update: It’s been a rough week for me, but the beasts are doing fine. As I write this, Gracie is monitoring a rain pipe by the side of the house in which a chipmunk is up to no good. Pippa is becoming much, much more demanding in the morning. First, she believes it is vital to move into my spot when I get out of bed so that she can sponge up all of my vestigial body heat and do a kind of spanielly backstroke on my pillow. Second, she will not get off the bed to go out until I rub her belly for an appropriate amount of time. And even then, she will not leave the front yard without a lot of coaxing, ideally in daylight.
The weird thing is that she acts like she’s terrified to go for a walk until suddenly some switch goes off in her head and she races for the car like she’s been assured there’s no danger. Zoë has very little patience for any of this. She aroos at me the whole time I’m attending to Pippa, but oddly doesn’t begrudge the silly spaniel for her demands on my attention. Other than that, Zoë continues to mellow. In her youth she was like a novice Secret Service agent who thinks every threat should be greeted with maximum physical output. Now she’s like some old Israeli bodyguard who’s seen it all and she does most of her work visually, appraising the threat matrix from afar. She’s got Tom Cotton eyes. She’ll still burst into action when required, but she now knows that wasted energy is a vulnerability. Also, her breath has reached the point where it’s a secret weapon; think the unwashed dumpster at the pier’s fish-cleaning station on a hot day. Other than that, they’re all very happy girls.
And now, the weird stuff