My December 3, 2024 op-ed in the Dallas Morning News: "Biden should pardon Trump Don’t stop with Hunter. Use the pardon power to its full effect."

 The published op-ed is here: www.dallasnews.com/opinion/commentary/2024/12/03/biden-should-pardon-trump/

My text follows:

Biden Should Pardon Trump and Associates—and Himself and His Own People

President Joe Biden is preparing to “pardon” a turkey on Thanksgiving at the White House as presidents have done for 77 years. This year President Biden should go further, much further, and pardon President-Elect Donald Trump. The pardon should include Trump’s key people. It should also include Biden himself and his own associates. 

As long as he is President, Biden solely holds the pardon power. The U.S. Constitution’s Article II, Section 2, Clause 1 provides the serving president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Neither Congress nor the courts are involved in the pardoning process, and the proposal would not require agreement by or with Trump. This will be up to Biden and Biden alone. 

Trump decisively won the 2024 presidential election. In his campaign, he and his team complained of the federal prosecutions of him initiated during Biden’s term and about the other allegations and investigations of criminal conduct on the part of Trump’s associates. Those matters did not prevent Trump’s clear election victory on November 5th, and Special Counsel Jack Smith has already wound down the Washington, D.C., criminal case against Trump for seeking to subvert the 2020 election. 

A presidential pardon would do much more. In addition to the President-Elect, the pardon should embrace the core campaigners and advisors plus the spouse, children, and in-laws of the President-Elect.

As for Biden also designating himself as a subject of the group pardon, during the campaign Trump repeatedly announced that his administration would exact revenge by initiating prosecutions and investigations of Biden and the people significantly associated with him and the Democratic Party’s presidential campaign. So in addition to Biden himself, the pardon should reach all of those persons, along with Kamala Harris, and their spouses, children, and in-laws.  

A few objections to such a pardon can be anticipated.

First, no specific criminal acts and dates have been articulated against most of the people included in this proposed pardon. But in its 1866 decision Ex parte Garland, the Supreme Court held that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction.” In short, a president can pardon even if no charges have been filed against the recipient. 

President Gerald Ford's 1974 pardon of Richard Nixon, against whom no charges were pending, demonstrates this. It was granted “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974 [Nixon's resignation date].” That pardon refocused the American people on the future. The proposed pardon would advance the same purpose.

Second, some believe that acceptance of a pardon is tantamount to admitting guilt. I disagree, but the pardon would not specify any particular crime being pardoned with respect to any person except the particular crimes for which Trump has been indicted. Again, the Nixon pardon was completely vague as to specifics. And any beneficiary of the proposed pardon could reject it.

Third, some contend that a president cannot pardon himself. I disagree. While there is no historical precedent, in any event Biden is also immune to criminal charges for all official acts, according to the July 1, 2024, Supreme Court decision in Trump v. United States.

Last, a presidential pardon cannot affect either civil claims litigation or State officers’ enforcement of their States’ criminal laws. 

Using the Nixon pardon as a model, the proposed pardon should cover “all offenses against the United States which the 2024 Republican and Democratic Party presidential and vice-presidential candidates, their respective families, and their associates as specifically identified in this document, have committed or may have committed or taken part in.” The period covered would be from the first inauguration of President Trump, January 20th, 2016, to his second inauguration, the same date in 2025. 

The pardon would be unusual, but we have been living through unprecedented times—no presidential candidate before Trump ever made threats, dozens and dozens of times, to investigate, prosecute, imprison, and exile his opponents, Biden and then Harris, and their people. 

As a legal historian, I note that every president near the end of his term pardons individuals he selects, and some or other Americans always disagree about their worthiness for clemency. Pardoning himself and his people is, moreover, something that Trump could do at any time after his inauguration. And by going forward now, while he holds the pardon power, Biden would demonstrate his deep religious faith that calls for forgiveness and love of neighbor, rather than retribution. 

Further, as a retired lawyer, I see this pardon as very much like a mutual settlement of litigation, balanced,  fair, and, in effect, reciprocal. The intent of the pardon would be, similarly, to avoid more vexation as well as to obviate, as much as possible, the acrimony, recriminations, and aspersions that infect and inhibit free public discourse today. It would take a significant step toward wiping the slate. It would help the American people move forward and focus on the specific policies and measures that the President-Elect will be instituting or proposing. Americans of all political stripes can then better discuss those matters, with reduced distraction from the bruiting of allegations of the past in the news and social media.

The proposed pardon should lay out that rationale. Our nation has suffered enough from acrimony and recrimination. President Biden can take this courageous first step toward national healing. If there is to be robust disagreement, then let it be over policy, and the future direction for our nation, and not over past grievances.

Mr. Daniel is a retired lawyer and legal historian. He is writing the biography of Hatton Sumners, who chaired the House Judiciary Committee, 1931-1947. 

My November 9, 2024, letter to Jerry Nadler

 Josiah M. Daniel, III 

Retired Partner in Residence     Visiting Scholar 

                              Vinson & Elkins LLP                 Department of History, UT Austin  

U.S. Mail: 2904 Rosedale Ave., Dallas, TX 75205 

B: blog-josiahmdaniel3.blogspot.com/ 

E: josiahmdaniel3@gmail.com 

         

Rep. Jerrold N. Nadler                                                                                             November 9, 2024

Ranking Member, Judiciary Committee                                  via email and U.S. Mail

House of Representatives 

2132 Rayburn HOB 

Washington, DC 20515

Re: Your H.R. 9223 (the “Nondebtor Release Prohibition Act of 2024”) would,     unintentionally, impair Chapter 9 municipal bankruptcy, but the solution is simple. 

Dear Congressman Nadler:  

I respectfully submit my identification of an unintended flaw in your bill that would have an adverse effect upon municipal bankruptcy , along with my recommendation for an easy fix. By copy hereof, I also notify your co-sponsors, Congresspersons Cohen, Norton, Porter, Desaulnier, and Johnson, as well as Senator Warren.

Your bill creates a new § 113 in Chapter 1 of the Bankruptcy Code (the Code) that will be applicable to cases in all chapters that provide relief to debtors; that includes Chapter 9 (municipal bankruptcy) by virtue of Code § 103(f). 

The debtor in Chapter 9 must, of course, be a “municipality,” defined as a “political subdivision or public agency or instrumentality of a State,” i.e., a city, town, public hospital district, irrigation district, or other political subdivision of a State that has the power to tax, spend, and incur debt. Chapter 9 affords such a public debtor an opportunity to conduct and effectuate a restructuring through negotiations with creditors through a plan of adjustment, maintaining vital public services while discharging unpayable amounts of debt. While Chapter 9 case filings are rare, the availability of Chapter 9’s relief is vitally important for the financial health and operational wellbeing of American cities, towns, and special purpose districts

What your H.R. 9223 does not take into account is that a key element of municipal bankruptcy is a broad, automatic (but temporary) stay of debt-collection activities that shields the debtor and also protects certain, worthy, nondebtor third parties. But unlike the “extended automatic stay” that the Purdue Pharma bankruptcy judge ordered to protect the Sacklers, the municipal bankruptcy stay that protects certain third parties is entirely statutory and automatic, not discretionary with a bankruptcy judge—and exists in the Code for a very good purpose for ninety years now.  

The municipal bankruptcy stay is found in Code § 922(a)(1):  

§ 922. Automatic stay of enforcement of claims against the debtor 

(a) A petition filed under this chapter operates as a stay, in addition to the stay provided by section 362 of this title, applicable to all entities, of— 

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against an officer or inhabitant of the debtor that seeks to enforce a claim against the debtor . . . . 

As set forth in the first line of § 922(a), the Chapter 9 stay is “in addition to the stay provided by section 362 of” the Code, providing an additional stay for certain, very special and deserving third parties—namely, “an officer or inhabitant of the [municipal] debtor”—against legal process or judicial action “that seeks to enforce a claim against the debtor” by way of process or action.   

On fast glance, you might think this Code-based stay of Chapter 9 this stay resembles an extension of the automatic stay of Code § 362(a) or the issuance of a preliminary injunction by the bankruptcy judge in a mass tort Chapter 11 case in that it does protect some nondebtor third parties; but the Chapter 9 stay is fundamentally different—and therefore the Chapter 9 stay ought to be specifically excluded from the ambit of your H.R. 9223. 

First, the third parties that are protected—automatically by virtue of the municipality’s commencement of a Chapter 9 case—are not at all analogous to nondebtor third parties such as the Sacklers who caused massive damage and numerous deaths. Contrary to the appalling situation of the Sacklers, the third parties protected by municipal bankruptcy’s automatic stay are, first, the “officers” of the municipality, including elected and appointed officials who are governing, leading, administering, and performing the public-service functions of their city, town, hospital district, other political subdivision, or instrumentality of a State, and, second, all the “inhabitants” of that political entity. 

Quite obviously, those nondebtor third persons are not liable on creditors’ claims against the municipal debtor. But prior to Congress’s passage of municipal bankruptcy in 1934, such nondebtor officers and inhabitants of insolvent municipalities had historically been subjected to lawsuits by aggressive creditors, principally holders of defaulted municipal bonds—primarily but not exclusively in mandamus cases seeking to twist as many arms as possible to force a debtor municipality to increase tax rates and to collect defaulted taxes more aggressively in an effort—almost always nugatory—to cause more and faster payments on defaulted municipal bonds.   

It was Congressman Hatton W. Sumners (1875-1962),  serving as Chair of the House Judiciary Committee (1931 to 1947), who devised the predecessor provision of today’s Code § 922(a)(1) and drafted it into the municipal bankruptcy bill, H.R. 5885, he filed on June 2, 1933. His successor bill, H.R. 5950, carried that stay provision forward into his First Municipal Bankruptcy Act, also known as Chapter IX, that was enacted on May 24, the next year, 1934. That Act was legislatively (i) extended on April 10, 1936, (ii) reenacted as the Second Municipal Bankruptcy Act on August 16, 1937, and (iii) incorporated into the Chandler Act on June 22, 1938. The Chapter IX stay required entry of an order of the court, but when Congress in 1976 revised municipality bankruptcy, it made the municipal-bankruptcy stay automatic in that year’s revisions to Chapter IX, which of course was then adopted as the Arabically numbered Chapter 9 as part of the Bankruptcy Reform Act of 1978.

(For brevity, I have not footnoted my historical presentation above. I am about to submit for publication my archivally researched article on the history of the genesis of municipal bankruptcy. Upon your request, I would be happy to submit my full manuscript, and to point out the relevant archival citations, for the points I summarized above.)  

The specific way your H.R. 9223 will operate adversely upon today’s Chapter 9 stay is by forbidding the bankruptcy court to enter an order that would include injunctive relief in favor of nondebtor third parties:

[New] § 113 . . . (a) Except as provided in subsection (b) of this section, subsection (a)(3), (g), (h), or (i) of section 524,the court may not—. . . with respect to the liability of an entity other than the debtor or the estate [i.e., of a nondebtor third party] on, or the liability of property of an entity other than the debtor or the estate  for, a claim or cause of action of an entity other than the debtor or the estate . . . (2) . . .  enjoin—(A) the commencement or continuation . . . of a judicial, administrative, or other action or proceeding to assert, assess, collect, recover, offset, recoup, or otherwise enforce such claim or cause of action [i.e., against a nondebtor third party]; or (B) any act to assert, assess, collect, recover, offset, recoup, or otherwise enforce such claim or cause of action.

Here specifically is how your bill will thwart Chapter 9’s stay provision: 

Under Code §§ 921(b), (c), and (d), after the Chief Judge of the Court of Appeals designates the bankruptcy judge to handle the case, and after the bankruptcy judge finds the debtor filed the petition in good faith and that the petition meets “the requirements of this title to conduct the case,” then “the [bankruptcy] court shall order relief under this chapter [9].” So after the filing of the petition, the Chapter 9 case does not commence until after those preliminaries and until a bankruptcy judge “order[s] relief under this chapter.” 

At that point your H.R. 9223 would kick in and forbid and prevent (“the court may not”) the bankruptcy court to order Chapter 9 relief because, as Code § 922(a) provides, that order would activate the municipal bankruptcy stay: the Chapter 9 “petition . . . operates as a stay” or injunction during the case’s pendency that, as discussed above, automatically protects those certain statutorily designated nondebtor third parties, i.e., the municipal debtor’s “officers” and “inhabitants,” against litigation and assertion of claims by and from persons who also have claims against the debtor. 

Summarizing: under normal Chapter 9 process, the bankruptcy judge must enter an order approving the petition and ordering “relief under this chapter [9]” and that order activates the § 922(a)(1) statutory stay in favor of not only the debtor but also the nondebtor officers and inhabitants of a municipality. Your § 113 would prohibit a court order activating or providing such stay or injunctive relief protecting nondebtor third parties even for the finite pendency of the case.

In conclusion, your H.R. 9223 would turn the clock back 90 years for Chapter 9 municipal bankruptcy. It would eliminate or render impossible § 922(a)(1)’s protection of a municipal-debtor’s nondebtor officers and nondebtor inhabitants against the inevitable litigation brought by municipal bondholders and creditors who will—just like before 1934—seek to recover their claims against the municipalities by suing the officers and inhabitants for mandamus and other causes of action. 

To prevent that, all you have to do is revise H.R. 9223 by adding the following capitalized reference to Code § 922(a)(1):   

‘‘§ 113. Prohibition of nondebtor releases 

(a) Except as provided in subsection (b) of this section, subsection (a)(3), (g), (h), or (i) of section 524, SECTION 922(a)(1), section 1201, and section 1301, the court may not—. . . .”

Respectfully submitted,

Josiah M. Daniel, III

cc: Rep. Steve Cohen

Rep. Eleanor Holmes Norton

Katie Porter

Mark Desaulnier

Rep. Hank Johnson 

Sen. Elizabeth Warren

Words of wisdom re blaming or accusing others

Heard from the pulpit of All Saints Episcopal Church, Austin, Texas, this past Sunday, and cited to her "German grandmother" by Rev. Genevieve Razim, preaching:

"Remember that when you point your finger, there are three more fingers pointing back at you."

figurative language in academic/historical writing . . .

"[L]inguists, philosophers, and literary theorists who have investigated processes of textualization in scholarly discourse have all reached the same conclusion: writing an academic study without at some point resorting to figurative language is extremely difficult, even impossible."

Philippe Carrard, History As a Kind of Writing : Textual Strategies in Contemporary French Historiography, University of Chicago Press, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utxa/detail.action?docID=4785185.

A good definition of "American demagogue"

Here is a book I discovered in history grad school. Published in 1954, it is relevant today: Reinhard H. Luthin, *American Demagogues--Twentieth Century* (1954 & 1959), with an introduction by the great historian Allan Nevins.

The author presents a very functional definition of "American demagogue":

"masters of the masses who, in their aspirations for political place and power pandered to the passions and prejudices, rather than the reason of the populace, and performed all manner of crowd-captivating tricks. . . . He is a politician skilled in oratory, flattery, and invective; evasive in discussing vital issues; promising everything to everybody; appealing to the passions rather than the reason of the public; and arousing racial, religious, and class prejudices--a man whose lust for power without recourse to principle leads him to seek to become a master of the masses."

He added, perspicaciously:

"In a future fraught with complex social, economic, and diplomatic dilemmas, future demagogues will probably find more untapped areas of ignorance, prejudice, bigotry, and emotionalism to exploit. With television and other means means of mass communication, their voices and their faces may invade any home in the United States--and many abroad. Such professional 'men of the people' accordingly present a persistent problem which this and future generations of Americans and peoples of other lands will be forced to face."

In the Intro, Professor Nevins notes: "We have had plenty of demagogues in state and city affairs. . . . But we have never had a President who by the wildest stretch of the English language could be justly called a demagogue."

That was in 1954 . . . . . . .

I attach the title page and the TOC.

Further to my critique of today's SCOTUS: "judicial hubris"

 From the intro to a new law article (footnotes omitted):

In its 2024 decision overruling the decades-old Chevron doctrine directing judges to accept an

agency’s reasonable interpretation of ambiguous statutory language, the Supreme Court declares:

“agencies have no special competence in resolving statutory ambiguities. Courts do.” This Article

makes clear how profoundly blinkered an assertion of judicial hubris this statement is. We present

findings from a qualitative empirical study of how agencies work with the statutes that give them

authority to act, showing that interpreting statutes to ensure that they have effect in the world is at

the heart of agency competence. Loper-Bright, much like the Court’s recent supercharging of the

“major questions doctrine,” rests on two flawed assumptions . . . .

Anya Bernstein & Cristina Rodríguez, Working with Statutes, forthcoming Tex. L. Rev. 2025)(emphasis added). 

I agree, and I recommend this article to all who have serious interest in the Court and are concerned about it trajectory.

I agree with Alan Nevins here:

"Instead of dissecting impersonal forces … the historian should narrate the past in terms of living men and women seen as individuals, groups, or communities; and he should give due emphasis to personal motivation and initiative."

Allan Nevins (1890-1971)

Historian, Columbia University Faculty, 1928-58