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Friday, June 08, 2018

Ali/Trump

Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.

• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?

• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.

• All politics is personal. The NFL players must be speaking out about injustices done to their friends or specific people they know and want to help, just as the President uses the pardon power to help his friends or individuals he knows and wants to help. He does not conceive of systemic problems that affect thousands of people, who need help not by the individual remedy of a pardon but by systemic reform. Nor does he appear to understand why players would protest for a cause disconnected to individuals that they know and care about.

• The players are protesting systemic racism, violence, and differential treatment in the criminal-justice system This includes police killing unarmed or non-threatening persons of color with impunity. How does a pardon affect that? Walter Scott is dead, so a pardon does not do him much good. Of course, one of the President's pardons was granted to Joe Arpaio, who was convicted of contempt of court for refusing court orders to stop discriminating and using unjustified violence in his role as a police officer.This President is more likely to pardon Michael Slager, the officer who shot and killed Scott and is serving a federal prison sentence on a civil rights charge.

• Most law enforcement, and so most of what the players are protesting, involves state and local police and the state criminal-justice system. The President can pardon federal crimes, not state crimes. So even if Colin Kaepernick had ten friends wrongfully convicted, Trump could not do a thing about it. So this is demagoguery--an empty and impossible gesture, used to fool the unaware into siding with him against a group and message to which he is opposed. Or the President is unaware of the limits of his pardon power.

Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink

Comments

"I am not sure of the social or political utility of allowing the President to speak erroneously, without correction."

Exactly. That's why Justice Alito muttered, "not true", during President Obama's SOTU.

It is the objective truth that makes us one people.

Posted by: Oughta Know | Jun 12, 2018 3:13:16 PM

I am not sure of the social or political utility of allowing the President to speak erroneously, without correction. My 2 cents.

Posted by: Howard Wasserman | Jun 12, 2018 10:50:29 AM

"Trump asked the players to talk to him about something very specific--give him the names of their friends or known people who have been treated unfairly so that the President can give them pardons. But the players want to address systemic problems, including police violence and harassment, that cannot be addressed through pardons. And if the players did have specific names to offer, most are treated unfairly by the state judiciary, which a presidential pardon does not reach. So, yes, it is an opportunity to talk directly to Trump. But only to the extent he can throw out some pardons. Once he realizes that either is not possible or does not resolve what the players want, the conversation ends."

What you just described is a perfect way to illustrate the systemic nature of the abuse. There's any number of ways to illustrate this through "personal" stories (who's to say what can be personal?) Will Trump listen? Dunno. But here's a chance to talk directly to Trump about what the protest is *actually* about. The dialogue could become wider; the dialogue may die completely. But you end the conversation before it even starts. Oh, this is what Trump will do because he sucks so I'm not even going to talk. I have no respect for that position. And as someone who's been banging the drum of police brutality since before the NFL sideshow, it hurts to see the cause utterly abused in this way.

"If expecting the President to know what the hell he is talking about when he discusses his powers and public issues makes me an elitist, I will own that."

Yes. I know that this gives you a very righteous feeling over someone you consider morally repugnant and intellectually beneath you. But it has absolutely no social or political utility. My 2 cents, anyway.

Posted by: YesterdayIKilledAMammoth | Jun 11, 2018 7:38:24 PM

Wait, what? He's interested in hearing the players' stories now? After only 12 months of constant mudslinging, dog whistles and hyperbole!? Well, damn, let's just send him the Nobel now...

Posted by: Anon Again | Jun 11, 2018 10:32:29 AM

If expecting the President to know what the hell he is talking about when he discusses his powers and public issues makes me an elitist, I will own that.

Trump asked the players to talk to him about something very specific--give him the names of their friends or known people who have been treated unfairly so that the President can give them pardons. But the players want to address systemic problems, including police violence and harassment, that cannot be addressed through pardons. And if the players did have specific names to offer, most are treated unfairly by the state judiciary, which a presidential pardon does not reach. So, yes, it is an opportunity to talk directly to Trump. But only to the extent he can throw out some pardons. Once he realizes that either is not possible or does not resolve what the players want, the conversation ends.

Posted by: Howard Wasserman | Jun 11, 2018 12:18:39 AM

Such bitterness.

Posted by: John | Jun 10, 2018 11:39:51 AM

Because this exact reading list seems to show up on several law blogs over the past 18 months or so. So I was just wondering.

In the future, I wouldn't be too worried about being seen as promoting a blog on here. If you took off all the posts on here that are simply fishing for SSRN views and downloads, at least 50% of the site would go away.

Posted by: YesterdayIKilledAMammoth | Jun 9, 2018 8:28:11 PM

Because I did not want to be seen as simply promoting our blog (and as I composed the list, I had that option). Why does this trouble you enough to ask the question?

Posted by: Patrick S. O'Donnell | Jun 9, 2018 8:14:53 PM

Patrick, why didn't you just link us to the actual website that gives the exact same reading list? https://www.religiousleftlaw.com/2017/09/the-colin-kaepernick-story-in-context.html

Posted by: YesterdayIKilledAMammoth | Jun 9, 2018 7:48:43 PM

Every college major is more likely to be on scholarship than athletes. That alone proves how much we disrespect athletes in our country.
If we really thought black athletes were talented, we'd give them scholarships when they went to college like we do blacks in the humanities and social sciences.

Posted by: Uncle Thom Soul | Jun 9, 2018 6:45:33 PM

Perhaps some folks would be interested in a short list of titles that help put this discussion in (among other things) political, historical and sociological context:
• Bass, Amy. Not the Triumph but the Struggle: The 1968 Olympics and the Making of the Black Athlete. Minneapolis, MN: University of Minnesota Press, 2002.
• Carlos, John (with David Zirin). The John Carlos Story. Chicago, IL: Haymarket Books, 2013 (2011).
• Carter, Rubin “Hurricane” (with Ken Klosky). Eye of the Hurricane: My Path from Darkness to Freedom. Chicago, IL: Lawrence Hill Books, 2011.
• Dorinson, Joseph and Joram Warmund. Jackie Robinson: Race, Sports, and the American Dream. New York: Routledge, 2015 (M.E. Sharpe, 1998).
• Early, Gerald L. A Level Playing Field: African American Athletes and the Republic of Sports. Cambridge, MA: Harvard University Press, 2011.
• Edwards, Harry. The Revolt of the Black Athlete. New York: Free Press, 1969.
• Goodman, Jordan. Paul Robeson: A Watched Man. London: Verso, 2013.
• Hawkins, Billy. The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions. New York: Palgrave Macmillan, 2010.
• Hirsch, James S. Hurricane: The Miraculous Journey of Rubin Carter. New York: Mariner Books/Houghton Mifflin Harcourt, 2000.
• Hodges, Craig. Long Shot: The Triumphs and Struggles of an NBA Freedom Fighter. Chicago, IL: Haymarket Books, 2017.
• Marquesee, Mike. Redemption Song: Muhammad Ali and the Spirit of the Sixties. London: Verso, 2nd ed., 2005.
• McRae, Donald. Heroes Without a Country: America’s Betrayal of Joe Louis and Jesse Owens. New York: Harper Collins, 2002.
• Owens, Jesse (with Paul Neimark) I Have Changed. New York: William Morrow & Co., 1972.
• Scott, Jack. The Athletic Revolution. New York: Free Press, 1971.
• Wice, Paul B. Rubin “Hurricane” Carter and the American Justice System. New Brunswick, NJ: Rutgers University Press, 2000.
• Zirin, David. What’s My Name, Fool? Sports and Resistance in the United States. Chicago, IL: Haymarket Books, 2015.

Posted by: Patrick S. O'Donnell | Jun 9, 2018 6:27:47 PM

"Trump has basically"

The Ali confusion is skipped over in the reply, but including that bit of confusion would ruin the self-righteous criticism. The calling out Trump's ignorance as being "elitism" is dubious. Elitism how exactly?

Calling it "elitism" aside, the two points aren't actually substantively refuted. The text spoke of "misunderstanding." The "idiot" is inference.

Nor does the other points call Trump some sort of "monster." The failure of a few pardons to address the substantive concerns argument? Again, not actually refuted. I think one can push back on it, but that would be more complicated.

====

Tidbit on the other reply. Reference to Hugo Black dissenting in Cohen v. California. Black didn't personally announce his sentiments, only joining a dissent. The dissent made two points, one substantive, the other more procedural. The substance had this line: "Cohen's absurd and immature antic, in my view, was mainly conduct, and little speech."

What this tells us about his patriotism one way or the other is unclear to me. It basically tells me that Black thought that in a courtroom, wearing a "Fuck the Draft" jacket could be banned. About it.

Posted by: Joe | Jun 9, 2018 4:38:10 PM

So, let me get this straight. In the middle of a pardon debate, Trump has basically asked the NFL players for their personal stories. In other words, here's a chance to turn the protest into what it is *actually* about--systemic discrimination, wrongful police killings, etc. Here's a chance for the NFL players and those supporting them to talk *directly* to Trump.

And what happens? A little bit of "Trump's an idiot" elitism (bullet points 1 and 2). Followed by, the "Trump's a monster" excuse *not* to talk directly to him (bullet points 3-5).

Posted by: YesterdayIKilledAMammoth | Jun 9, 2018 11:48:14 AM

Very interesting angles . Much of criticism or debate this days , have to do with potential future use of pardon power , for obstructing justice ( or self pardon , concerning the special prosecutor investigation ) here I quote for example , from an article in the " Washington post " :

Jed Shugerman, a Fordham University Law School professor, said raising the idea of pardons could be read as a warning to Mueller that if he pushes to subpoena Trump, the president could escalate the fight by pardoning people under investigation.

Here :

https://www.washingtonpost.com/world/national-security/a-president-cant-obstruct-justice-thats-not-quite-right-legal-scholars-say/2018/06/03/a66f057e-6742-11e8-bf8c-f9ed2e672adf_story.html?utm_term=.dde2db3093c1

Thanks

Posted by: El roam | Jun 8, 2018 8:35:43 PM

Your second link sounds interesting, but doesn't work.

I can't claim to follow everything the President says, but has he really said that people who decline to engage in patriotic rituals, like the singing of the national anthem, should be deported, or is that just hyperbole? If the latter, it does really detract from the force of the argument you're making (for me anyway).

On the other hand, I think it's also hyperbolic to say that Trump's view is that "someone who refuses to join the military and fight in time of war does not ['derogate and insult the military']." His view may be that people who do those things generally do insult the military, but that Muhammad Ali did not because he had religious reasons for doing so, indeed reasons so good that the Supreme Court reversed his conviction, though he doesn't seem to be aware of that, or unaware that that makes a pardon unnecessary.

More generally, I don't think that believing that conscientiously objecting to killing people is okay, but refusing to stand for the National Anthem is not, is at all incoherent or reflective of a purely symbolic patriotism. It could reflect a perfectly coherent non-symbolic patriotism that recognizes that conscientious religious objections to killing people supervene over the obligations that that patriotism imposes. Similarly, four of the Justices who voted to reverse Ali's conviction, including Hugo Black, dissented in Cohen v. California, seven of them joined the majority opinion in O'Brien, one was still around to dissent in Texas v. Johnson (White), and we know that there were members of the Johnson majority who thought flag-burning despicable, though constitutionally protected. I don't think this suggests that Hugo Black and Byron White were merely symbolic patriots; rather, as I understand their views, particularly Black's, they thought there were greater liberty interests involved in conscientious objections to the draft than in symbolic, non-verbal protests of patriotic symbols.

Finally, it is of course true that the pardon power cannot help the dead, but it can be used to address "differential treatment in the criminal-justice system," and I think it's praiseworthy (if open to reasonable skepticism) that the President says he's open to using it for that end.

Posted by: Asher Steinberg | Jun 8, 2018 7:11:34 PM

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