Crucially Important Steps for Biden: Eliminate the OLC Rule Against Indicting Sitting Presidents and Clarify the Scope of Valid Pardons

President Biden should immediately have the Justice Department and Congress invalidate the fraudulent, corrupt, unconstitutional Justice Department Office of Legal Counsel (OLC) rule against indicting sitting presidents, ordered by Nixon to protect himself as Watergate was unfolding, knowing full well that indicting sitting presidents was indeed constitutional. Contrary to the devious rationale of the OLC rule, indicting is no more distracting than impeaching. In fact it is far less distracting. In any case, Nixon’s OLC rule was not applied at the time since he resigned and the whole matter was dropped. The rule was forgotten until raised from oblivion by Attorney General William Barr. We cannot afford to have the OLC rule, which shields criminal presidents, any more.

Many argue that the Constitution does not explicitly provide for indicting a sitting president, but that is incorrect. Following the principle that no one is above the law, Article I, Section 3, last paragraph states “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Very clearly, sitting presidents are not shielded from indictment and prosecution, whether or not they are impeached by the House and convicted by the Senate. The Constitution’s rationale is logical: if a criminal president’s own party controls either the House or Senate and is loyal no matter what crimes the president has committed, the president will not be removed. Consequently, there is a clear need for an alternate path for accountability, namely the judiciary. In other words, the executive branch comes under the dual but separate control of the legislature and the judiciary, each with differing procedures and penalties.

The second thing Biden should do is have the Justice Department and Congress bar attorneys general from being involved in all matters concerning the presidents who appointed them, due to conflict of interest considerations. Attorney General William Barr dug up Nixon’s OLC rule and illegally applied it, being perfectly aware of its fraudulent origin, in order to prevent the Mueller Report indictments from being prosecuted against Trump who appointed him. Even in the absence of an explicit law or regulation, Barr should have recused himself from all matters concerning Trump. By not doing so, Barr behaved unethically and illegally, and he should be disbarred and indicted for obstructing justice. (The OLC rule, a transparent con job, is online.)

The third thing Biden should do is have Congress clarify and codify the constitutional limits of presidential pardons. The clarification would have retroactive effect, as it does not change the constitutional validity of pardons, it only clarifies when a pardon is valid or invalid, in order to avoid future misunderstandings, and to make null and void past pardons which are deemed to be invalid (such as Ford’s conflict-of-interest pardon of Nixon who appointed him vice-president, and Clinton’s corrupt pardon of Marc Rich in exchange for a cash contribution to his charity).

The Constitution is a highly moral document. It explicitly states that presidents must not commit corrupt or treasonous acts, specifically, or high crimes and misdemeanors generally, while implicitly providing that no one is above the law, including presidents. Just because the Constitution does not explicitly list the limits of pardons does not mean it intends that there be no limits. The Constitution must be interpreted according to its spirit and guiding principles whenever it does not explicitly deal with any particular eventuality. It should be clear that it would be shockingly contrary to the Constitution’s highly moral spirit for presidents to pardon themselves, or to grant pardons tainted by corruption, self-interest, or conflict of interest. The conflict of interest limitation means that pardons cannot be granted to family members, friends, colleagues, or people with whom the president has had or could have financial, professional, or personal ties.

To be valid, pardons must not have even the appearance of corruption, self-interest, or conflict of interest, no matter how remote. They must be perfectly clean. Pardons, according to a logical interpretation of the Constitution, are intended to be granted only to deserving persons with no personal connection to the president granting the pardon, who have already been convicted for a specific crime, but have redeemed themselves over the years by showing genuine contrition and by contributing positively to society. Pardons are also intended for persons who have been mistakenly convicted of crimes they did not commit. Blanket and preemptive pardons are out the question, being contrary to the spirit of the Constitution. Pardons must be in writing for specific convictions, and they must be motivated. The moral justification for a pardon must be absolutely clear and in writing for everyone to see. Secret pardons are out of the question apart from the requirement of transparency, since one main point of pardons is to publicly rehabilitate the reputation of a convicted person. Accordingly, all of Trump’s pardons appear to be constitutionally invalid, being tainted by corruption, self-interest, or conflict of interest, in addition to lacking a valid justification, in which case they should be declared null and void.

The Constitution cannot be expected to dot every “i” and cross every “t”, to list every eventuality. It provides guiding principles and singles out specific details, but expects that the legality of whatever it does not explicitly deal with will be determined by a logical interpretation of its principles and spirit. It would be completely illogical to interpret the Constitution as intending that a president can do anything illegal and get away with it, just as it would be illogical to interpret the Constitution as approving of immorality.

The fourth thing Biden should do is reveal who QAnon is. By now, it should be obvious who QAnon is, at least to the FBI and CIA. That revelation would let the air out of QAnon and the conspiracy mania, one factor undermining our democracy. The susceptibility to absurd conspiracy theories is entirely due to a deficient public school education, resulting in many Americans being severely undereducated, illogical, naïve, gullible, delusional, alienated, enraged, distraught, lost, or mentally disturbed, or some combination thereof. A deficient public school education is also responsible for poverty, addiction, violence of all sorts (including gun violence and mass shootings), domestic abuse, crime, and violation of human rights.

Therefore, the fifth thing Biden should do is propose an enlightened national core curriculum, which is indispensable for a truly good education, and a demanding, prestigious national high school graduation exam to ensure a uniformly excellent public school education nationwide. Politically, economically, and socially, we need a very well educated and well-adjusted citizenry. Any objection that providing an excellent education nationwide to every single youth is too expensive is nonsense. It’s the best investment we can make, and it would provide remarkable dividends, more than paying for itself in one generation. Since a very well educated citizenry is in the national interest, Biden should propose that public schools be financed by the federal government, particularly since not all localities have the means to provide truly excellent public schools. To skirt objections that a major public school upgrade would require raising taxes, a common complaint, Biden needs to explain that QE financing by the Federal Reserve would avoid any tax hike. (QE, though it consists essentially of printed money, is not inherently inflationary, contrary to mainstream economic theory. In fact, as statistical history proves, QE is inflationary only if it causes excess aggregate demand, not when it is well calibrated. Also, QE financed Treasury bonds consist of “virtual federal debt”, which evaporates at maturity as the Fed cancels those maturing bonds or rolls them over indefinitely. Therefore, there is no passing of debt to future generations.)

An enlightened public high school curriculum, which is absolutely essential, would include the following courses: 1)logic and critical thinking (an antidote against falling for QAnon, cults, con men, aspiring dictators, dishonest and corrupt politicians, demagogues, liars and spinners; against believing Covid-19 is a “Democratic hoax”; against politicizing public health measures such as mandatory masks during pandemics; and against half the population not having the common sense to understand that masks are very effective against spreading the virus, and being oblivious to the example set by Taiwan and Singapore) with case histories and work shops; 2) economics and investing (with annual economic forecasting and portfolio management competitions), including explaining why QE financing can often avoid the need to increase taxes or cut spending; why QE-financed tax rebates (not ultra-low interest rates) should be the standard economic stimulus tool; why long-term capital gains taxes should be reduced, being especially unfair to homeowners but also to investors and economically counterproductive; and why many mainstream economic theories governing our economic policy are fallacies, such as those regarding budget deficits and the causes of inflation, as proved by relevant statistical history; 3) analysis of domestic and world history in great detail from 1900, focusing on the causes of World War I and II; on the causes of communism in Russia and why communism failed; on the causes of fascism in Germany and Italy; on the causes of the Great Depression; on the various causes of anti-Semitism and its culmination in the Holocaust; on the causes of the Israeli-Palestinian conflict (“land” is a simplistic explanation); and on the causes of Islamic terrorism; 4) ethics and empathy (missing all too much in our society and government, as exemplified by our having separated migrant children from their parents) with case histories and workshops; 5) the United Nations Universal Declaration of Human Rightsand the history of human rights violations, which would serve to totally discredit racism, sexual and religious discrimination, intolerance, and censorship; 6) introductory law and Constitutional law, including explaining why the Justice Department’s OLC rule against indicting sitting presidents (ordered by Nixon to protect himself as Watergate was unfolding) is corrupt and unconstitutional; why the presidential pardon power is constitutionally limited by conflict of interest and corruption considerations (ours is not a banana republic constitution); and why attorneys general must recuse themselves from all matters pertaining to the presidents who appointed them (this conflict of interest rule would have freed the Mueller Report indictments to be prosecuted instead of being illegally suppressed by Attorney General Barr); 7) comparative religion, pointing out major religions’ similarities and differences, and the many egregious violations of human rights in the three holy books of monotheism; 8) history of art, architecture, and design; 9) history of music; 10) the major mistakes in economic, social, and foreign policy over the past 100 years and which would have been the correct policies; 11) a four year course on psychology accompanied by indispensable “group therapy” and “good parenting” workshops, which would greatly reduce violence, crime, addiction, abusive behavior, and psychological problems. Of critical importance is to provide individual assistance for students having academic or psychological problems, in order to prevent them from falling behind and dropping out.

This public school reform is absolutely essential for the nation in order to protect democracy and ensure economic and social prosperity, with a minimum of political strife. One can safely bet that not one of our politicians over the past fifty years had a well-rounded education, and that they all had deficient knowledge in many of the critically important topics listed above, meaning they were all unqualified. That explains our repeated failures in economic, social, and foreign policy over the past fifty years, which, by the way, have paved the way for Trumpism. It’s illogical to believe that just being a lawyer or a businessman makes a candidate qualified to be president, senator, representative, governor, or mayor. Yet, that has been our nation’s costly attitude. It’s time we wised up.

© Edward Sonnino 2021

January 26, 2021


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Edward Sonnino

Edward Sonnino

Born and raised in New York City. Best course in college: history of art. Profession: economic forecaster and portfolio manager. Fluent in French and Italian.