The Presidency as Protection Racket – Dan Greenberg

The president has argued on Truth Social that Peters is an “innocent Political Prisoner” who was wrongly convicted “for her attempts to expose Voter Fraud in the Rigged 2020 Presidential Election!” (Peters is apparently a true believer; one day after her conviction, she appeared on Steve Bannon’s podcast to explain that she meant to continue to publicize her election conspiracy theories about, among other things, the links between Serbian “vote-flipping software” and “Serbia Dominion employees.”) Trump sometimes intersperses his online statements with what might be commands—e.g., “FREE TINA!” He has also promised “harsh measures” for Colorado if Peters remains imprisoned, and it appears he has begun to deliver them. 

Consider: In September, Trump announced he was moving the headquarters of the Space Command from Colorado to Alabama. In early December, the Department of Justice opened an investigation into Colorado’s correctional facilities and residential youth centers. One week later, the administration announced that it intended to cancel more than $100 million in transportation grants awarded to Colorado and to dismantle the National Center for Atmospheric Research, located in Boulder. At the very end of last year, the president exercised the first veto of his second term: It killed federal funding for a pipeline project in eastern Colorado that was intended to provide the region’s residents clean drinking water and replace the radiation-poisoned groundwater there. Earlier this month, the Department of Health and Human Services announced that it was freezing billions of dollars in spending for social services in five states, based on concerns about the “potential for extensive and systemic fraud.” This placed roughly $317 million of federal spending that had been directed at Colorado in jeopardy.

Of course there is no shortage of White House communications professionals to explain that such decisions were correctly made on the merits and have nothing to do with any ill feelings in the White House about Peters’ imprisonment in Colorado. Those explanations, however, are sometimes overshadowed by the pronouncements of the man in the Oval Office. At a December White House event, Trump complained about “The state of Colorado–the poorly run state of Colorado–with a governor who’s incompetent. And frankly, with a governor who won’t allow our wonderful Tina to come out of jail.” One day after his pipeline veto, the president announced over social media that Polis was a “Scumbag Governor,” adding that Polis and the district attorney who prosecuted Peters deserved “only the worst. May they rot in Hell. FREE TINA PETTERS!” (The typo was the president’s.)    

To understand these events as merely the consequence of a spat between a president and a governor is a mistake. Rather, they are appropriately understood as an attempt to undermine some central features of American government. At the dawn of the American Revolution, James Madison famously explained the engine of American constitutionalism in Federalist 51: “Ambition must be made to counteract ambition.” Madison argued that a government of separated and balanced powers would secure liberty by encouraging the competing ambitions of public officials to check one another. He explained that America’s “compound republic” rested on the division of political power into “distinct governments”—that is, state and federal—and the subdivision of that power into “separate and distinct departments.” What had to be avoided, according to Madison, was a constitutional structure that might permit one particular person or organized group to seize total control of government. If it becomes normal for one branch of government to exercise the powers of another, that behavior undermines our constitutional order generally—in the same way that official tolerance of some particular crime will have ripple effects upon the public that reach far beyond the criminal and the victim.

Madison saw ambition and self-interest as inevitable facts of life: American constitutional design uses the defects of human nature as forces to be channeled and exploited. But the constitutional balance depends on some degree of cooperation and mutual respect among the different branches and bodies of American government: If those who control some branch of government habitually overstep limits—if they will not accept the principle that it is in everyone’s interest to respect the boundaries that limit each branch’s power—that encroachment subverts the balance of powers on which the American system relies.

When the president demands the pardon of Peters, such encroachment poses a genuine threat to what Madison called “double security”—that is, the vertical distribution of powers between federal and state governments that protects the rights of the people. The president is putting extraordinary pressure on the governor of Colorado—to urge him to do directly what Trump would like to do indirectly. It is hardly an exaggeration to understand Trump’s message as that of the racketeer: “Nice little state you got there. I sure wouldn’t want anything to happen to it.” And it is reasonable to see tiny cracks forming in our constitutional foundation when Polis muses aloud that he is thinking about pardoning Peters.  

This clash between state and federal powers goes far beyond political horse-trading and logrolling. That kind of favor-swapping is often seen as disreputable—implying, as it does, that decisions are not being made on the merits—but it is perfectly legal. But the pressures Trump is exerting—and the goals he is pursuing—are categorically different from a conventional political deal. More precisely, a multitude of constitutional constraints show that his actions lie far outside of favor-swapping. The Constitution forbids the federal government from placing conditions on federal funding that are not reasonably related to the purpose of that spending. Furthermore, such conditions cannot be “so coercive as to pass the point at which pressure turns into compulsion.” Federal coercion is impermissible: The courts have found that the federal government cannot order state-level actors to carry out federal goals. Furthermore, permissible favor-swapping has additional limits: Politicians may horse-trade by swapping one “official act” for another, but they may not trade an official act for a “private benefit.”

This particular clash between two units of government is perhaps better understood as a window into what happens when one of them overlooks or ignores the good-faith, stay-in-your-lane norm of mutual respect that is supposed to govern the relations between them. (Presumably, obeisance to such constitutional boundaries informs the oath every president takes to preserve, protect, and defend the Constitution.) In any event, constitutional concerns should not obscure more practical and immediate problems: If Trump succeeds in forcing a state-level pardon through federal pressure, the security of our electoral system is jeopardized. Regrettably, the White House seems intent on jeopardizing federalist electoral norms across multiple dimensions, ranging from the federal raid on Georgia election offices last week to Trump’s call the other day to “nationalize the voting” by subjecting elections to federal administration and control.

The consolidation of state-level pardon authority in the White House, however, is especially dangerous. If such consolidation becomes normalized, it advertises the possibility of a “get out of jail free” card to any political ally who is willing to break state laws in the president’s name. Consider the signal this sends to local officials: If you get caught breaking the law to advance the president’s fortunes, the president will turn off the spigot of federal spending in your state until your criminal record is erased. The incentive for political misbehavior is gigantic: It encourages widespread contamination of election integrity. (My Cato colleague Stephen Richer, a former county election official himself, recently published an excellent piece that expands on this point.) This kind of exercise of presidential power undermines the independence of the states and transforms them into a set of branch offices of the federal government whose receipt of federal largesse is dependent on the political interests of the president. 

More is at stake here than a pipeline bill, or a research facility, or the freedom of an election-tampering county clerk. The bottom line is that the exercise of the pardon power must be governed by constitutional norms; it is supposed to be a gesture of mercy or grace, not a tool of governance. If the pardon power becomes the instrument of a racket, it can no longer be understood as a constitutional check: It functions more as a scepter of royal command. The 10^th Amendment to the Constitution is supposed to prevent the transfer of Colorado’s sovereign powers to the Oval Office, because the president is not a king. Instead, he embodies a sub-unit of American government that, like every other government office, has limited powers. The protection-racket model that Trump has adopted here is an impermissible attempt at an end-run around constitutional norms. If successful, its consequences will be disastrous.