National Post (National Edition)
Trump and the unpardonable Muhammad Ali
Scenes From a Presidency, part 1,412,119 in a continuing series: on Friday, Donald Trump had an interesting exchange with a press scrum in Washington, just before departing for the G7 summit in La Malbaie, Que. Trump was asked whether he would be exercising his clemency power more often, after having earned praise for giving a posthumous pardon to the boxer Jack Johnson and commuting the life sentence of Alice Johnson, a 63-yearold cocaine trafficker and grandmother championed by Kim Kardashian.
Alice Johnson had an outrageous but hardly atypical case for receiving mercy from the chief magistrate. She was convicted of drug offences in 1993 after being sold out by other dealers who got softer punishment in exchange. (“Ohhhh, beauuutiful for gracious skies, for ammmmberrr waves of graaaain .... ”) Johnson has a record of exemplary behaviour in prison, and had made an unsuccessful application for clemency to the Obama justice department, which was probably the deciding factor for Trump. That or the personal visit from the famous model.
When Trump was asked if he would be pardoning more people, he said, “I’m thinking about somebody that you all know very well, and he went through a lot, and he wasn’t very popular then ...” Some wag blurted out “Is it O.J.?” Trump acknowledged the joke — or treated it as a joke, anyway — and went on: “He was not very popular then. His memory is certainly very popular now. I’m thinkin’ about Muhammad Ali.”
This may be yet another an example of the “roast me” tactics that Trump has turned, intentionally or not, into a superweapon — inviting pettifogging or pedantic criticism by perpetrating factual errors, ambiguously racial remarks, and Twitter misspellings. The boxing legend Muhammad Ali, as his legal estate and family were quick to point out in a press release, would in no way be eligible for a criminal pardon if he were alive.
Ali was convicted of the felony of “willful refusal to submit to induction into the Armed Forces” in 1967 after refusing to take the ceremonial step forward at his draft-board hearing. (Yes, it’s a literal step. Go on, Americans: tell us again how weird it is that we have a Queen on our money.) But that conviction, which cost him the heavyweight title and three-and-a-half years of his boxing career, was overturned by the U.S. Supreme Court in 1971.
The point that Ali is in no technical need of a pardon was quickly seized upon by the news media as the latest hilarious Trump goof-up. If you have any political imagination, you can see how people who don’t suffer chronic Trump hydrophobia will react. Trump did not actually specify that he was thinking about pardoning Ali: he was asked about the general topic of pardons, and said, in his usual free-associative style, “I’m thinkin’ about” Ali. Even if it is a solecism, it is not one that is offensive to Ali’s memory or to his family. The man obviously considers Ali’s treatment by the government — in collusion with boxing authorities and with businessmen for whom Ali had made millions — to have been a disgrace. Which it was.
And, of course, posthumous political pardons are a bit nonsensical anyway, since the recipient is not around to benefit from them and has no legal standing. Such pardons are gestures of humility, gentle revisions of history. Trump can now go ahead and plan a formal apology for Ali that does not include a legally empty “pardon” for a ghost.
The Supreme Court’s 1971 decision in Clay vs. United States — which remains the formal title of the case despite Ali’s earlier change of name — is a fascinating exercise in judicial politicking. Muhammad Ali refused to step forward on grounds of conscience at a time when the United States had military conscription. (Registration for the draft is still obligatory for male U.S. citizens.) But “conscience,” in this case, meant that Ali just had no personal beef with the North Vietnamese. He is famous for having said so.
As a matter of logic, this did make him ineligible to be a conscientious objector (CO) to the draft. The existence of CO status was intended to provide for principled pacifists, and not to allow draftees to pick and choose their preferred wars, even on a religious criterion.
By the time Ali’s cause reached the Supreme Court, both the draft and the war for which he was being drafted had fallen out of social favour. Moreover, the way Ali had been prevented from earning a living was increasingly seen as disgusting, un-American, and racially motivated. But the Supreme Court was lucky. Legal and military historians know that American draft boards have always been terrible at obeying U.S. law. The Louisville draft board that Ali faced, after being browbeaten by the federal Department of Justice, failed to be specific enough in outlining how Ali had failed the legal tests for CO status.
Under established blackletter law, Ali was innocent of felonious draft evasion: he had not received the proper benefit of due process. If the draft board had originally been more careful, the Supreme Court would have had a bigger problem, and we might have been denied Ali’s 1970s return to the pinnacle of the heavyweight division. But, then again, if his conviction had been upheld, a U.S. president could actually pardon him in 2018.