Businessman Fredric Eshelman sues pro-Trump ‘election ethics’ group citing ‘disappointing results’ of effort to expose cheating
A Donald Trump supporter who donated $2.5m to help expose and prosecute claims of fraud in the presidential election wants his money back after what he says are “disappointing results”.
Fredric Eshelman, a businessman from North Carolina, said he gave the money to True the Vote, a pro-Trump “election ethics” group in Texas that promised to file lawsuits in seven swing states as part of its push to “investigate, litigate, and expose suspected illegal balloting and fraud in the 2020 general election”.
President Donald Trump’s announcement that he has pardoned Michael Flynn, his former national security adviser who twice pleaded guilty to lying to the FBI, is infuriating—and not merely because of the gross favoritism on display. What Trump has done once again is corrupt something that ought to be beyond corruption: the mercy that the most powerful person in the world can bestow upon those who are in chains.
I know the beauty of this power. I’ve seen it at work myself.
On a bright August day in 2016, I received a call from a number at the Department of Justice. The official on the other end told me that three of my law-school clinic’s clients had been granted commutations that would free them from life sentences on cocaine offenses, after each had served 25 years or more in prison. I was to call each of them immediately, and tell them the news.
First, I called Richard Van Winrow, one of the people caught up in the early days of the harsh mandatory crack laws of the 1980s. He was quiet, subdued; my own voice was hushed. Then I called Rudy Martinez, who had been in prison most of his life but had discovered his own intellect and ambitions through classes and borrowed books. I heard joy and disbelief in his voice. “Really?” he asked me.
Last was Ronald Blount, who had called me every Friday as his petition was pending. I had gone to his prison in Louisiana, leaned over a table, and prayed with him. He was called to the warden’s office, like the others, not knowing why.
When he answered the phone, I said simply, “God is good.”
There was a pause, breathing. And then he said, “All the time.”
The Trump administration has offered Americans many emotions, but very rarely has it created moments of joy shared across the country’s political divide. One of those rare moments came on June 6, 2018, the day that President Trump granted a commutation to Alice Marie Johnson, a grandmother serving a life sentence on a narcotics conviction. The nation watched as Johnson, clad in drab gray prison sweats, ran across an Alabama-prison road into the arms of her jubilant family. Yes, just the week before Trump had pardoned the Fox News darling Dinesh D’Souza, and that contrast did muddy one’s emotions. But nevertheless it was a brief, surprising, uplifting moment.
The pardon clause is what enabled that moment and others like it. This short clause is the wild thing of the United States Constitution: ancient, unchecked, unbalanced, and placed solely within the discretion of the president. In a criminal-justice system characterized by its inhumanity, the pardon power is capable of only one thing, something more spiritual than legal: mercy. Part of clemency’s elegance is the dialectic between the giver of mercy and the recipient, in which responsibility for a crime is accepted and contrition expressed, followed by mercy and reconciliation. Trump has upended this by taking the acceptance of responsibility and the reconciliation out of it; too often, clemency in his hands has just been a way to mark and reward terrible behavior he approves of, as with Sheriff Joe Arpaio’s biased policing.
Because of the depth and beauty of the pardon power, Trump’s abuse has been enraging both to those who love it and those who don’t. The difference lies in their reactions. When commentators such as the Harvard law professor Jack Goldsmith call for Congress to restrict the pardon power in reaction to Trump’s favoritism, they channel the anger of many—but theirs is a misguided call. The core problem with modern clemency has not been too much of it, but not enough. Right now, more than 13,000 petitions are pending, many of them having sat in limbo for years in a byzantine maze of bureaucracy, most of it coursing through the very same Department of Justice that sought the harsh sentences in the first place. The reform we need is a new, better process to evaluate petitions, so that more people, not fewer, can know this blessing.
Clemency has been a part of legal systems going back to the Code of Hammurabi. The ancient Jews had a tradition of granting freedom to a prisoner as part of the Passover festival. The Romans had a goddess of clemency, Clementia. I found out about her when I messed up an internet search and discovered Roman coins for sale that bore her name. The coins were surprisingly affordable—the Romans made so many of them—so I bought several and gave them to others who work to free people in prison. Some of those people, including the poet Reginald Dwayne Betts, carry them around in their pockets like I do, a tiny symbol of something old and good.
The Framers of the Constitution were wary of the power of kings, yet they included clemency in our founding document. As a Christian, I would love to say that the embrace of the pardon flowed from Christian belief, but that probably is true only for some of the Framers. Just as influential might have been the Bard. Educated Americans at the end of the 18th century lived in a cult of Shakespeare; busts of him were common in upper-class homes, and Thomas Jefferson and John Adams even made a joint pilgrimage to Stratford-upon-Avon in 1786. Shakespeare, in his plays, came back again and again to the idea of mercy. Measure for Measure is expressly about governmental pardoning, and the power of mercy is a central theme in many of Shakespeare’s other works, including The Tempest—a performance of which George Washington attended during the Constitutional Convention in Philadelphia.
In The Merchant of Venice (which Jefferson likely saw at least twice), Portia argues that Shylock should show mercy, both for himself and the recipient: “The quality of mercy is not strain’d / It droppeth as the gentle rain from heaven / Upon the place beneath; it is twice blest / It blesseth him that gives and him that takes.” That idea, that mercy is for both the giver and the recipient, came to mind when I was talking last month to Jason Hernandez, who had been sentenced to life in prison for selling crack and who wrote his own successful clemency petition to President Barack Obama before going on to guide others along the same path to freedom. “Redemption goes both ways,” he told me, “and clemency is a way for the government to seek forgiveness for the War on Drugs.”
George Washington granted some of the first U.S. pardons to participants in the Whiskey Rebellion—an uprising put down in 1794 by militiamen led by Washington himself. Defending his actions in his Seventh Address to Congress in 1795, Washington used language that we might not expect from a warrior: “It appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”
Washington was not alone in seeing this soulful value in the pardon power. He was a man of war who, as president, led a nation formed by law. Abraham Lincoln, conversely, was a man of law thrust into war—yet he saw the same deeply moving spirit in the exercise of clemency. He met personally in the White House with the families of those seeking pardons and overruled his generals to save some who were sentenced to death for desertion.
The perspective of those who have been in prison gives reform real urgency, and many of the leading advocates for change are those who themselves sought and received mercy. Johnson has borne criticism for speaking at Trump events while working within the administration for a broader use of the clemency power, but she remains undaunted. “Having received this grace keeps a passion inside me,” she told me.
I have been to the homes of several of those freed through President Obama’s clemency initiative, and saw the same thing in each: a kind of shrine around the letter they received from Obama informing them of their grant, a very human connection between the most powerful person in the world and one of the the least powerful. At the end of that letter, Obama told the man or woman granted freedom, “I believe in your ability to prove the doubters wrong. So good luck, and Godspeed.”
Restricting clemency would cut against something deep and ancient and right, something that flows within the words of Shakespeare and the last flickering light within the condemned. What would be imperiled is not only the power of the president, but the hopes of the least among us. Even after Trump’s desecration of the pardon power, it remains a way to make real the urgings of our better angels.
Vanderbilt soccer player Sarah Fuller became the first woman to play in a major conference football game Saturday when she kicked off the second half against Mizzou.
Wearing number 32, the college senior and Vanderbilt soccer goalkeeper suited up for Saturday’s game due to COVID-19 absences, and made history with a kick to start the second half against the Mizzou Tigers at Memorial Stadium in Columbia, Missouri.
Sarah Fuller squibbed it exactly where she was supposed to (watch Vanderbilt’s coverage guys all funneling short right) and left it un-returnable for Mizzou. Probably one of Vandy’s best executed plays of the day in all honestly pic.twitter.com/7cEY8j9rnN
Hans von Spakovsky is a senior legal fellow at the Institute for Constitutional Government of the Heritage Foundation and the manager of Heritage’s Election Law Reform Initiative.
In Trump v. New York, the Supreme Court should be looking only at the constitutional and statutory issues: whether President Donald Trump was within his legal authority to direct that noncitizens in the country illegally be excluded from the population used for congressional apportionment. The policy issue is very important, of course. What the president did was fundamentally fair. And, under the Supreme Court’s precedent in Franklin v. Massachusetts, Trump was also within his legal authority to do so.
First on the policy issue and the question of fairness. For the past four years, the political arena has been filled with claims of Russian “interference” in our elections. Special Counsel Robert Mueller actually indicted a number of Russians for involvement in those efforts. If you were to ask members of the public if they believe that any one of the indicted Russians should be allowed to make a political donation to a federal candidate — be it Trump or someone running for Congress – if he were here illegally, I have no doubt they would uniformly say “no.”
If you then ask whether that same Russian should be allowed to be a candidate for Congress, you would receive the same adamant answer. And if you ask whether that Russian should be able to vote in federal elections, including congressional elections, the answer would still be a resounding “no.”
So why would the state of New York or any of the other Democratic-controlled state and local governments who are challenging the president’s action argue that Russians (and other noncitizens) who are not here legally should be included in the population used to apportion the political power of the House of Representatives? Only one reason: to distort the House and give states with large illegal immigrant populations more members of Congress (and more political influence) than they are entitled to receive according to their citizen population. This gives states an incentive to obstruct federal immigration law in order to boost the number of illegal immigrants residing in those states.
The three-judge district court that granted summary judgment to New York and issued a permanent injunction prohibiting the Commerce Department, the Census Bureau and all other government agencies from implementing Trump’s July 21, 2020 memorandum got it legally wrong, too, and misapplied the Franklin decision.
Under Section 2 of the 14th Amendment, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” The secretary of commerce is given the statutory authority under 13 U.S.C. § 141(a) to conduct the census “in such format and content as he may determine” and then send a report to the president.
Pursuant to 2 U.S.C. § 2a(a), the president is directed to send Congress “a statement showing the whole number of persons in each State” as determined by the decennial census and “the number of Representatives to which each state would be entitled … by the method known as the method of equal proportions.” Trump’s July 21 memorandum specifically instructed the secretary to exclude noncitizens who are in the country illegally from the base population number for apportionment purposes “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
As the Supreme Court said in Franklin, the president’s role in applying the “equal proportions” formula to the base population is ministerial. However, his role in determining what the base population is – the number to which the formula will be applied – is not ministerial. In fact, the court noted that 2 U.S.C. § 2a(a) does “not curtail the President’s authority to direct the Secretary in making policy judgments” regarding the conduct of the census.
As the Justice Department persuasively argues in its brief, one such “judgment” is “whether a person should be deemed an ‘inhabitant’ or ‘usual resident’ of a State, which is ‘the gloss’ that has historically been given to the constitutional and statutory phrase ‘persons’ in each State.” Furthermore, the court stated in Franklin that the key phrase of “persons in each state” used in both the Constitution and the statute “mean[s] more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place.”
Noncitizens who are here illegally – like tourists or other temporary visitors – have no element of political allegiance to any state or the federal government. They cannot be drafted for jury duty or for military service (if we still had a draft), because they owe their political allegiance to the native country of which they are a citizen. Moreover, they have no “enduring tie” to any state since they are illegally present in the country. They can be picked up, detained at any time by federal authorities, and removed from the United States.
Thus, excluding individuals who have no allegiance or enduring tie to a state is well within the precedent set by the court in Franklin – and well within the precedent set by prior censuses that have always excluded certain individuals. It is uncontested by the challengers in this case, for example, that the “Residence Criteria” established by the Census Bureau in 2018 for the 2020 Census – following the same rules used in prior censuses – excludes noncitizens who were lawfully “visiting the United States, such as on a vacation or business trip.” If we can exclude noncitizens who are here temporarily and legally from the census count, why can we not exclude noncitizens who are also here illegally and temporarily – that is, until they are caught and removed?
The district court’s analysis fails on all counts to correctly apply the statute and the Franklin precedent. The court held, for example, that the president’s memorandum would somehow “chill” participation in the census. It did that without evidence to support that conclusion; however, even if it were true, it would be irrelevant. If the president has the statutory authority to determine the population used for apportionment purposes, then any chilling effect cannot be used to prevent him from exercising his statutory authority.
The court also held that the president’s role in making this determination is, in fact, ministerial, and that he cannot direct the secretary to report a different population for apportionment purposes from the total population determined by the census. But that is directly contrary to the Supreme Court’s decision in Franklin that the president can make policy judgments on what population will be used for the apportionment formula. It also conveniently ignores the fact that the Census Bureau has long excluded other “whole persons” from the count, such as noncitizens who are in the country as tourists or for business purposes.
Including noncitizens living here illegally in the population used for apportionment makes no sense in a representative, democratic republic, any more than it would make sense to allow them to vote, make political donations or run for office. And as the Franklin case shows, and as pointed out in a persuasive amicus brief filed by constitutional scholars John Eastman and John S. Baker about the original meaning and history of the apportionment clause in the Constitution, the president is well within his authority to exclude these noncitizens. Eastman and Baker note that including noncitizens who cannot legally establish residence would be inconsistent with the Constitution since they are not “inhabitants,” the “term used in the Constitutional Convention, The Federalist Papers, and Census instructions for much of our history to identify those to be counted.” (Baker elaborates on that argument for SCOTUSblog in a previous entry in this symposium.)
The Supreme Court should overturn the lower court opinion, dissolve the injunction and not allow the votes of citizens to be diluted, and the distribution of the political power of the states to be unfairly distorted, by an apportionment calculation that includes noncitizens without legal status and without allegiance to our nation.