On Monday morning, President Trump weighed in on a letter the NYT had published. The letter, written by Trump’s lawyers at the time, had posited that Trump could pardon himself. Trump agreed:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
This was Trump throwing red meat to his base. The Republican punditry immediately rallied around him and either amplified his position or, in the case of some, studiously ignored the tweet. Challenges, in the months leading up to a contentious midterm and while Trump’s poll numbers are rising with Republican voters, are not to be made. (RealClearPolitics)
That position, however, makes the campaigning difficult for other Republicans. Case in point, Ted Cruz.
Cruz built his reputation on explaining difficult concepts in a clear fashion, on standing up to politicians, on his honesty, and on his Constitutional knowledge. He famously stood up to President Bush and prosecuted a Mexican citizen who had murdered two Texan girls (Reuters), to Mitch McConnell for lying and bullying (Politico), to Obama on Obama’s threat to shut down the government (for which Cruz was subsequently, and incorrectly, blamed) (Washington Post), and Donald Trump at the RNC, standing up before a crowd of “his people” who were booing, and not bending an inch (CNN).
What a difference a year makes.
Texan Republicans, faced with two years of promotion of Trump as a successful leader and encouraged to avoid any news sources that might say otherwise, have maintained a contingent of voters who define other politicians – all other politicians – by how much they support Trump. Political ads in the area overwhelmingly mention supporting “The Trump Agenda”, even as few can identify any consistent agenda the President has presented.
Texas politicians are caught threading a needle… trying to promote the conservative values that their constituents have long held while simultaneously trying not to alienate the percentage of the base that believes that Trump can promote conservative causes and values by working against them, sometimes.
That leads to responses like this one:
Thanks @byrdinator for getting a GOP Senator on the record. Another coward proving we must vote Dem.
Cruz on whether he agrees w Trump that he can pardon himself. Cruz is silent for 18 secs before lying – it’s not a constitutional area he’s studied.
— ☇RiotWomenn☇ (@riotwomennn) June 4, 2018
Now people are pointing out that he hasn’t studied that area of Constitutional law, but he’s written a Harvard Law paper about it:
His political enemies were quick to jump on this fact, and looked at the paper. From the New Republic:
Footnote 79 is especially relevant to current debates. “The pardon power was not seen as suspension or dispensation,” Cruz argued. “The pardon power carries a scope specifically limited to crimes already committed. The pardon may not apply to acts that have not yet been committed, because it would function as a personal waiver, the impermissible dispensation of the laws.” It is hard to square these words with Trump’s expansive view of presidential power.
Cruz was likely trying to parse his words during that eighteen seconds. The history of pardon law has its own experts, and Cruz is not one of them. Also, while it is overwhelmingly agreed that the President should never pardon himself, it is a point of legal contention… a long-established “thought problem” posed in law schools because, it has always been understood, no President would be so foolish as to attempt it. (CNBC) It is plausible he was relying on that fact to give him wiggle room when challenged.
His response on Twitter certainly seems to indicate that was the case:
As for me, I still haven't studied the issue at that level of detail, and I don't intend to — because this is nothing more than an academic debate.
— Ted Cruz (@tedcruz) June 5, 2018
And therein lies the issue.
While Cruz is the most nationally visible Republican who has worked to develop a personal history of honesty, credibility, and a willingness to fight for his principles, he is not the only one. All of them are now faced with the decision whether to continue to do so in the face of Trump’s ethical problems and risk almost certain electoral defeat, or to try to go silent and hope to limp through with most of their ethics intact. They have no good answers, not while the Republican punditry lies about Trump’s missteps and the Democrat punditry overplays them. Too many Republican voters are being propagandized to love Trump and reflexively lumping all Trump criticism in with verifiable anti-Trump propaganda.
The obvious ethical answer is to stick to your principles and continue to fight. But when it looks like the party swing to a Euro-right style big government might be permanent due to the work of the punditry class, Constitutionalists can also convince themselves to concede some of their ethics in order to remain in a seat of power and be able to do some good for their constituents.
On the one side, the silenced voices of opposition as they retire or lose elections. On the other side, the voluntary silence of those afraid – justifiably – that their constituents won’t keep them around if they speak out.
And through it all, the most silenced voice of all – that of the pro-Constitution American.