PARDON ME BOY, IS THAT THE
These are the times that try men’s souls. Donald Trump has painted himself into a corner, and he’s getting desperate – desperate enough to ask his lawyers about presidential pardon power. I’m no constitutional lawyer, but I do know how to google, so I thought I’d share what I’ve learned about what a president can and can’t do in terms of exercising the power of the pardon. Hat tip to CNN and the Washington Post for helpful recent articles.
What sorts of crimes can the President pardon people for? Only crimes against the United States, and crimes committed in Washington, DC. He can’t pardon anyone for violating state laws. That leaves the Trumps and Kushner vulnerable to prosecution in New York, where most of their businesses are headquartered. (I’m reading that Special Counsel Robert Mueller has copies of Trump’s tax returns for the past several years, which is one thing that has Trump furious – and worried.)
Can Trump pardon his family members? Yes, but only for crimes against the United States and crimes committed in Washington, DC. And as Lawrence Tribe notes, pardoned criminals can still be compelled to testify in court, and their pardon means they’re not eligible for grants of immunity. If they perjure themselves, they’re criminals again. If they tell the truth? Trump is probably screwed.
Can Trump pardon himself? The Constitution is silent on this issue. Proponents argue that if it’s not forbidden, it must be permissible. Opponents argue that because the word “pardon” is understood to mean something that one person grants to another, the framers of the Constitution didn’t need to forbid self-pardons; a proper understanding of the word “pardon” does that automatically. None of the presidents who’ve found themselves in impeachment trouble (Andrew Johnson, Richard Nixon, and Bill Clinton) have tried to pardon themselves. The only way we’ll get a definitive answer about the constitutionality of self-pardon is if Trump tries it and the Supreme Court issues a decision.
Can Trump pardon himself? The Constitution is silent on this issue. Proponents argue that if it’s not forbidden, it must be permissible. Opponents argue that because the word “pardon” is understood to mean something that one person grants to another, the framers of the Constitution didn’t need to forbid self-pardons; a proper understanding of the word “pardon” does that automatically. None of the presidents who found themselves in impeachment trouble (Andrew Johnson, Richard Nixon, and Bill Clinton) have tried to pardon themselves. The only way we’ll get a definitive answer about constitutionality is if Trump tries it and the Supreme Court issues a decision.
Can Trump pardon people for potential future crimes? No. He could, I suppose, issue new pardons to the same people on a weekly basis for whatever laws they may have broken in the past seven days. Given the rampant criminality of the Trump Mob, that would probably be necessary.
Is Trump required to specify the crimes he’s pardoning people for? No. Gerald Ford gave Nixon a blanket pardon for “all offenses against the United States” committed during his presidency.
If you’re pardoned, is that the end of it? You walk away a free man? Not quite. If you’re offered a pardon, it’s not valid until you accept it. (That’s one thing that makes a self-pardon a little ridiculous.) And if you accept a pardon, you’re basically admitting guilt. That was Gerald Ford’s rationale for pardoning Nixon, and he cited a 1915 Supreme Court case (Burdick v. United States) to support his contention.
But wait, there’s more. Any Trump family members who accept a pardon for federal crimes that are also crimes in New York State will probably discover that they’ve jumped out of the frying pan and into the fire. If they’ve already pleaded guilty to an offense in one jurisdiction, New York Attorney General Eric Schneiderman should have a much easier time convicting them in a state courtroom.
For Trump himself, accepting a pardon, even from himself, could be used as evidence of criminality in impeachment proceedings, which honorable Republicans would surely launch if Trump stooped to pardoning himself. Stop snickering!
The bottom line, though, is that while pardoning his family and even himself might buy Trump some time, it’s likely to come with a tremendous cost. The bill is bound to come due sooner or later. As the saying goes, if you can’t do the time, don’t do the crime.
All this assumes that Trump intends to obstruct justice by issuing pardons, and probably also by finding a way to fire Special Counsel Robert Mueller. When might those things happen? Like Jon Snow, I know nothing. But I see that Trump is scheduled to take a long vacation (August 3-20) at his golf resort in Bedminster, NJ. It’ll be interesting to see what happens in the days before August 3.