For 30 years, Donald Trump regularly visited the Paul Molé Barber Shop in Manhattan’s Upper East Side. Adrian Wood, the barber who owns the shop, remembers that Trump would instruct barbers precisely where to snip his mane, and would never allow them to expose his bald spot, as revealed by a report in the New York Post: ‘He’s a complete control freak. He dictates exactly how you cut every hair on his head. “Cut here, cut there. That’s enough.” And you just do what he says.’
No wonder that now, when Trump repeatedly evokes the prospect that before leaving office he might pardon himself, the debate throws us back into the self-reference paradoxes discussed for millennia, like the one (falsely attributed to Bertrand Russell) about a barber who shaves only those who do not shave themselves. Does this barber shave himself? If he does, then he obviously violates the rule of shaving only those who do not shave themselves. If he doesn’t, he falls in the category of those who do not shave themselves, so he can shave himself.
What happens if we apply this paradox to Trump — can he pardon himself? Common sense tells us that the President (or any other supreme authority like a monarch) who has the right to pardon those judged and condemned by a court can only pardon those who cannot pardon themselves (if all condemned could pardon themselves, a large majority of them would do so). If he can pardon himself, then he needs pardon, which means he is a common person who violated the law and, as such, cannot pardon himself.
The solution to this paradox is, in Trump’s case, relatively simple: Trump himself, the self-professed protector of Law and Order, perceives himself as standing above the Law. The implication of his claim that he can pardon himself is that he ultimately doesn’t need to be pardoned because what he does is not contained by the Law.
But there is another problem here: the privilege of giving pardon is usually reserved for monarchs or presidents of a state who do not hold executive power, i.e., whose function is, as we say, symbolic and ceremonial. (Hegel clearly saw the necessity of the gap that separates the monarch from executive power.) ‘Totalitarian’ temptation arises when the two levels collapse, i.e., when the nominal head of state also holds executive power. This happens not only in Fascist and Stalinist ‘totalitarianism’ (although, in the case of Italy, Mussolini was not both — Italy remained a monarchy) but is also inscribed into the very constitution of the US, which is unique in that the president is not exempted from executive power. The two functions are united (which is why the US presidents can rule with ‘executive orders’, largely ignoring Congress and Senate). Where does this come from?
Eric Nelson (in The Royalist Revolution) convincingly demonstrates that it was admiration for royal prerogative power and belief in the virtues of a strong executive, both derived from 17th-century precedents, that fostered the rebellion against Britain and shaped the Constitution of the new American republic. The American Revolution came out of a royalist, not a parliamentarian, tradition: first, the ‘Founding Fathers’ hoped that the British king would protect them against the tyranny of the British parliament raising taxes on the American colonies; when this did not happen, they incorporated this image of a monarch with executive powers into their constitution.
This decision of the Founding Fathers has fateful consequences even today: what Obama and Trump share, all their contrasts notwithstanding, is the excessive use of ‘executive orders’. Not that US is really a monarchy but in some sense it is even worse than a constitutional monarchy: a monarchy in which the monarch also has executive power which can limit parliamentary oligarchy.
However, the irony of history teaches us that maybe something good can come out of this danger. Remember how, at the beginning of his presidency, Trump used his executive powers to proclaim a state of national emergency. His critics were shocked at how he applied this measure, clearly intended only for great catastrophes like a threat of war or natural disaster, in order to build a border to protect the US territory from an invented threat. However, not only the Democrats were critical of this measure — some on the right were also alarmed by the fact that Trump’s proclamation sets a dangerous precedent: what if a future leftist-Democratic president will proclaim national emergency on behalf of, say, global warming? My point is that a leftist president should act like this to legitimize fast extraordinary measures — global warming effectively IS a (not only national, but global) emergency.