"Forgiveness," Modified: The Abasement Principle

Over at the Volokh Conspiracy, a modest proposal for a constitutional amendment providing that "federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office." The proposal, derived from Texas's so-called "forgiveness doctrine," is aimed at curbing "Lawfare," admittedly an undefined and imprecise term whose bounds are as difficult to figure out as its harms are "difficult to quantify." (Public discourse these days seems to run, a remarkable amount of the time, on neologisms and coined phrases. This is not new--"McCarthyism" has stood in for a great many things--but it does seem especially widespread in our age of morons with megaphones. The habit is even more popular among the highly credentialed morons, who seek primacy or "novelty" in crowded, competitive scholarly and discursive environments. I see little evidence that these coined words and phrases play a clarifying role. My rule of thumb is that if a thing is worth saying in one word, it's worth saying in five clearer words from our existing store of English.)

It's an interesting proposal. But it's not sufficient, for a couple of reasons. A full and proper act of forgiveness usually entails some degree of acknowledgment by the wrongdoer of his or her misconduct and some degree of repentance. It may be impractical to have this process occur through an effort to communicate with the entire electorate. But it is possible to have a single figure stand in for the public in this step. The obvious candidate is the president, with his or her singular nature. 

The other problem is that, insofar as the doctrine is in part fitted to making officials "of use [to] the executive branch" as a figure willingly carrying out the president's will, too absolute a rule leaves a disturbing amount of freedom on the part of the local or federal officer not to serve the presidential will. Local and federal officials owe obligations to their voters and to the laws and Constitution of the United States and of the several states. What if they put things like local political sentiment above service to the president, who may be the locus of a profound popular national mandate? What if they embarrass the president--the representative figure, remember, in the forgiveness process--by disagreeing with him or publicly correcting an obvious lie or error on his part? Can we still call the forgiveness process complete under such circumstances? No. A sword of Damocles is needed--some ability on the president's part to require an ongoing show of repentance and fealty, with the reprieved figure knowing that the president can order the charges to be refiled at any time and may or may not issue a pardon.

In place of the proposed "forgiveness" doctrine, then, I suggest a modification: an "abasement doctrine." Under this doctrine, officials seeking some measure of grace or favor from the president, such as intervention into an ongoing criminal investigation or prosecution, must make a public show of self-abasement. In putting themselves in the president's good graces, they show that they are truly sorry for their wrongdoing. By leaving it entirely to the president's own discretion whether to forgive or not, the abasement doctrine ensures that both repentance and forgiveness are willing and voluntary. Because the forgiveness, along with the suspension of criminal charges or other consequences, is still within the president's discretion, the abasement doctrine requires the person seeking forgiveness to make a clear showing of self-abasement.

This required showing might be satisfied through various forms of public self-humiliation, such as agreeing with patently false factual propositions, denying one's previously stated policy positions with little or no persuasive explanation, praising the non-praiseworthy and condemning the virtuous, or even publicly denying and befouling one's most dearly held principles, sneering at one's own religious faith, and so on. Someone willing to do this is clearly going to be subservient to the embodied national political will. And since all of this takes place under Damocles' sword, a point that might be reinforced if the president pretended to act in a mercurial, prickly, arbitrary, easily offended manner, the person seeking forgiveness knows that it can be withheld at any time, with or without good reason. Such an individual--already demonstrably willing to abase himself and now also under a continuing and uncertain threat of punishment--will surely do everything in his power to be of use to the chief executive. 

Although the abasement doctrine might, in a technical sense, apply only to a narrow set of conduct, the general principle might be extended usefully throughout further policy realms. This is especially true in a maximal Article II world, but that in itself is insufficient. Policies might be centralized, made through executive orders rather than legislation. And the policies themselves might be selected to enhance the opportunities for presidential forgiveness and individual or collective abasement. If policies were not only made through executive order rather than legislation, but also employed policy instruments that maximized opportunities for individual exemptions and exceptions, the president might more fully exploit the abasement doctrine--now more of an abasement principle--to ensure their ongoing loyalty and obedience. Tariffs, for example, may serve the abasement principle far better than more economically "conventional" or "sound" but non-abasing forms of national trade and business policy. Suspending all national business, on a non-legislative and non-agency-driven basis, while exempting or reviving only those programs favored by the president would also create multiple opportunities for shows of abasement. 

I can already hear the objections. Doesn't such a policy encourage people with genuine principles and and a sense of character and virtue to avoid public office? Doesn't it incentivize the craven and cowardly? Will it disserve rule of law values? What if a president is not pretending, but actually is arbitrary, whim- or ego-driven, quick to attach personal slights to what are actually matters of office, insistent on personal loyalty rather than loyalty to law? Even if it makes the most sense to use the president as the locus of the forgiveness process, doesn't this encourage a departure from virtuous, law-obedient, reasoned government in favor of personalism or even a form of personalist dictatorship? Did you not read A Man For All Seasons?

I am aware of all these costs. But there are benefits. I think. Maybe. Actually, I'm not sure. It's entirely possible that this is not so much of a cure for a problem and more of a rationalization for a democratic and rule-of-law cancer. ("It's painful, brutal, and mortal. But you'll lose weight.") Still--it's worth thinking about!