A Day That Will Live In Infamy

And an existential battle that we have to win

Trump’s blizzard of executive orders in his first hours as president includes a dozen or more dangerous edicts that bring us closer to an authoritarian state. Driven by lies, propaganda, and pro-billionaire policies, they will come under heavy fire in the courts, as a few already have. His brazen moves to revoke enemies’ security clearances, manufacture an emergency to justify draconian immigration measures, ignore Congress’s command with respect to TikTok, and overturn the clear constitutional command of birthright citizenship, among others, are a tsunami of outrages by a madman. In the coming days, I and many colleagues will do all we can to painstakingly explain their anti-constitutional, anti-rule-of-law, and anti-American character.

But all of these moves are swamped by the sweeping pardons that Trump extended to nearly all the 1,600 insurrectionists who stormed the Capitol on January 6, 2021, in a murderous rampage whipped up by Trump to prevent the peaceful transfer of power. As a former DOJ official, line prosecutor, and partisan of the rule of law, I am loath to lump in this putrescence with the other assaults on constitutional rule. They call out for an initial separate condemnation.

The pardons are vile, vicious, and despicable. They are the most flagrant show of disrespect and tyranny toward the country by any president in our history. If they are not strongly repudiated by history, it will mean that the country has been lost.

In my paroxysm of blue-sky posts in the wake of the news, I wrote, “I cannot think of a remotely similar betrayal of country by a sitting president,” and served it up as a question to our national historian laureate, Heather Cox Richardson. She was good enough to reply quickly: “I got nothing. This is huge.”

Trump’s outrages, as I wrote yesterday, are invariably based on a lie. The pardons are based on several big lies.

We Are Now A Backsliding Democracy

The first big lie was his elaborate insistence that he won the 2020 election, which was rigged against him. Jack Smith's report makes clear that the claim not only was always laughable, but Trump knew it. Incredibly, he maintains it to this day: the pardons are part of an overall mission to erase history that would be poignant if it weren’t so dangerous.

The second big lie is Trump’s assault on the mammoth Department of Justice operation, the biggest in its history, to bring over 1,500 of the marauders to justice. Trump’s portrayal of the prosecutions as politicized—a trope that Pam Bondi picked up on in her nomination hearing—is grievously wrong and insulting to the army of career prosecutors at the DOJ who brought the offenders to justice while safeguarding their constitutional rights. One reason, in fact, that Trump was unable to cull out nonviolent offenders is that the department had already given most of them a pass. It was an extraordinarily resource-intensive operation, and an undeniably righteous one.

After Vance and Bondi’s pronouncements, it had seemed likely that Trump would pull back from the more extravagant versions of his promises to pardon the marauders. It would have been in character with Trump’s playbook of under-delivering and declaring victory, as I expect he will try with the imperialist threats on the Panama Canal. But he couldn’t resist the full embrace of the thugs who came to his aid and the full rebuke of the people who sought to bring them to justice.

Trump’s action delivers two middle fingers to the Department of Justice, raised higher than Elon Musk’s already infamous Roman salute. (There’s another, more disgusting image to call on, involving Trump’s doing to the country what one of his now-pardoned patriots did to the floor of the U.S. Capitol.) That, in fact, was part of the point.

The third big lie was his portrayal of the vicious marauders he had called into action as “heroes” and “patriots.” In fact, they were thugs and domestic terrorists. It fell to the judges of the D.C. district court—young and old, Republican and Democrat, and Trump appointees—to reject Trump’s lies and set the record straight. They dismissed Trump’s characterizations as preposterous and insisted that the defendants were enemies of democracy. Many of them, pushing on limits for judicial public speech, had cautioned Trump not to issue “blanket pardons.” They are surely among the most frustrated and disappointed American citizens today.

As for the pardoned horde, it’s hard to see why they wouldn’t conclude they now have license, even duty, to intimidate Trump’s opponents anytime they perceive a wink and nod from the boss. Or do we expect them to now go back to their day jobs and become peaceful model citizens?

Fourth and finally, both Vice-President-elect J.D. Vance and Attorney General nominee Pam Bondi assured the public that pardons should not be given to violent marauders or anyone who had threatened law enforcement. Vance and Bondi either were sending up smoke screens or they themselves were left completely in the dark by Trump’s radical plans.

If she had any self-respect, Bondi would now withdraw her nomination. Not only is this the worst affront to the DOJ in its history, it contradicts her testimony and her expressed revulsion for pardoning people who are violent to law enforcement while making her look impotent.

Worse, enormously worse, the pardons sweep in some of the most dangerous domestic terrorists in American history, including the two organizing forces behind the operation, Stewart Rhodes, founder and leader of the Oath Keepers (whose sentence was commuted, so the conviction remains on the books), and Enrique Tarrio, former chairman of the Proud Boys, who made their name with political street violence.

Both were convicted of seditious conspiracy, a famously rare and difficult charge and one of the most serious offenses in the books against not just a person but society and the Constitution. Tarrio received the longest sentence—22 years—of any January 6 marauder; Rhodes received 18 years.

A few of Tarrio’s and Rhodes’s words, set out in their indictments for seditious conspiracy:

• Tarrio: “If Biden steals this election [the Proud Boys] will be political prisoners. We won’t go quietly…I promise.”

• Tarrio: “It’s time for fucking war if they steal this shit.”

• Tarrio: “Hopefully the firing squads are for the traitors that are trying to steal the election from the American people.”

• Rhodes: Trump has to involve the Insurrection Act, and if he doesn’t, it would lead to a “much more bloody war.”

• Rhodes: After the insurrection, “We should have brought rifles. We could’ve fixed it right then and there. I’d hang fucking Pelosi from the lamp post.”

And for good measure, there is this gem from Daniel Rodriguez, which Professor Richardson highlighted on her indispensable Substack, Letters From An American. Rodriguez received a 12 ½ year sentence after he pleaded guilty to tasing Metropolitan Police Officer Michael Fanone, causing a heart attack and traumatic brain injury. After the tasing, he boasted to his friends in a group chat: “Omg I did so much fucking shit right now and got away. Tazzzzed the fuck out of the blue.”

All in all, Trump’s blanket pardons include over 600 marauders convicted of crimes of violence, including assault, resisting or impeding law enforcement, or obstructing officers during a civil disorder. 174 of those were charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer. Besides Rhodes and Tarrio, several other high-up members of the Proud Boys or Oath Keepers were convicted of seditious conspiracy.

These were villains to the Constitution who belong in the same infamous company as Timothy McVeigh, the Tsarnaev brothers, and Sheikh Omar Abdel-Rahman.

There may be some crazed MAGA extremists out there who applaud Trump’s treachery. But all the political figures that continue to support him surely know how sickening and dishonest it is. You have to wonder how Republican members of Congress, forced to flee from the Capitol floor when the mob Trump sicked on them broke through, are feeling tonight. Not to mention Mitch McConnell, whose loss of nerve at the second impeachment allowed Trump to fight another day. Or the justices of the U.S. Supreme Court who buoyed his return to power.

But the greatest grievance belongs to the country—that is, to all of us. Some of Trump’s orders today harm some constituencies but not others. Not the pardons. Like January 6 itself, they are an assault first and foremost on the Constitution and the rule of law. They reward violence not just against people but against the Constitution, and in the service of a treacherous lie on his behalf. The more they sink in, the more sickening they are. They are, and will remain, a deep stain on our history.

It follows that our 47th president, in his very first hours in office, has become a profound traitor and extreme menace to the country as a whole. It is, in a way, a moment of excruciating moral clarity. It reveals that the people and institutions—notably media and big tech—who are bowing the knee are betraying the national good, and the figures counseling finding middle ground are misguided.

I want, as always, to bring it home to the smart fight. I recognize the apocalyptic tenor of my reaction to the pardons, and it’s a fair fit to the off-the-charts level of constitutional insult. I also realize that it’s critical not to be fatalistic and, moreover, to keep an even keel for the marathon we are in. For one, it’s hard to be persuasive when you are screaming at the top of your lungs. So I intend to be keeping it together even as I implement the two-part platform I’ve set out in various entries in these pages: 1) always call out the lies; 2) never capitulate to an inroad on constitutional rule.

How to think about protective pardons

But make no mistake about where things stand as of today, day 1 of a historically miserable presidency. We are in an existential battle for our democracy. It's a battle that could be lost but must be won.

Talk to you later.