Pardon Me?
At the outset, let me be clear: I am not an attorney, never attended law school and didn’t even stay at a Holiday Inn last night. Nonetheless, I do have both a stepson and a son-in-law who are practicing attorneys and did take two challenging courses in Constitutional Law taught by a visiting faculty member of the Harvard Law School. Even after a half-century, I well remember such landmark cases as Marbury v .Madison, McCullough v. Maryland, Schenck v. United States, Plessy v. Ferguson and Schechter v. United States, not to mention the worst decision of all time (with the possible exception of Citizens United v. Federal Election Commission) Dred Scott v. John F.A. Sandford. And it is possible - just possible - that before too long, there may be yet another infamous case brought before the nation’s highest court: that of Trump v. United States. The issue? Whether or not it’s legal for the President of the United States to grant him/herself a pardon.
Before getting to the issue at hand and predicting whether or not the outgoing POTUS - along with his family and most loyal toadies - will, in fact receive pardons, let’s clear up one thing: I for one couldn’t care less whether or not he pardons himself, gets someone else to do it for him, gets Mitch McConnell’s hand-picked Supreme Majority to throw him a legal lifesaver, or constructs a piranha-infested moat around 1600 Pennsylvania Avenue. No matter how the scenario plays out, it’s going to ultimately be a lose-lose situation for him and his family.
First things first: according to the U.S. Constitution (article II, Section 2, Clause 1 the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” While the president’s power to pardon seems unlimited, a presidential pardon can only be issued for a federal crime, and pardons cannot be issued for impeachment cases tried and convicted by Congress. The way things work these days under this particular Department of Justice, Trump enjoys broad immunity from federal probes as president; there are currently no known federal investigations being conducted into possible crimes by him. That could all change at 1:00 on January 20, 2021, when he is no long POTUS. In any event, there are also a minimum of 9 state cases on the drawing board up in New York for which only Governor Andrew Cuomo could issue a pardon. And the way things stand, there are precisely 2 chances of that ever happening: absolutely none and a heck of a lot less than that.
So what choices does Boss Tweet have?
Pardon himself. (Trump recently retweeted a post from ultra-out-of-it GOP Rep. Matt Gaetz which said that the he should pardon "everyone from himself, to his administration, to Joe Exotic if he has to.”) From the point of view of legal logic, pardoning himself would be a clear admission that he, Donald Trump, had committed crimes. Let’s face it: one cannot be pardoned for a crime one has not committed. There is precedent for people receiving a presidential pardon even before they have been convicted. But in the case of Donald Trump, he has long insisted that he has never done anything wrong or illegal; it has all been the product of a vast conspiracy created by his enemies in the “lamestream media,” or the entire Democratic Party or all those who are just plain jealous of his success.
Another possibility would be for him to his Cabinet to institute the 25th Amendment, thereby having him resign from office, thus turning the presidency over to Mike Pence, thus giving him the constitutional authority to pardon his former boss. One “huuuge” problem with this is that were Pence to pardon Trump, it would thrust a lethal political dagger into the heart of the Hoosier Hero, who has already expressed interest in running for president in 2024. Remember what pardoning Richard Nixon in 1974 did for President Gerald Ford in 1976?
President-elect Joseph Biden has, to date, made it fairly clear that he will not seek to use his Department of Justice to pursue federal investigations about his predecessor. Whether or not this remains the last word remains to be seen. It is more than likely that ‘45 still has a few things up his sleeve for his final 50 days in office; these may serve to change the new president’s and his DOD’s mind. Without question, Biden and Harris are already receiving advice and pressure from a fractionated party as to what they should do.
According to various anonymous sources within the Trump camp, the president has been seeking advice recently as to whether pardoning himself is even legal in the first place. There was a legal memo written by the Department of Justice's Office of Legal Counsel just days before Nixon's resignation in 1974 that argued a president could not self-pardon. The DOJ’s position was quite simple: "Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative." That was, of course, a legal opinion, not law; but much like the opinion that a sitting president can't be charged with a crime, these things take on the feel of precedent. Instead, Nixon's successor and former vice president, Gerald Ford, as previously mentioned, gave his old boss an unconditional pardon a month later, thereby scuttling his own ambition of being elected President of the United States.
Of course, at the moment, Trump’s questions are largely academic (despite the fact that he is likely our least academic president since Warren G. Harding); as mentioned above, he has yet to be charged with a federal crime for which it would take a presidential pardon in order to keep him from being sentenced to living out his years at Club Fed. As things now stand, so long as he is POTUS, there is every reason to believe that he is incapable of being in this position: after all, attorney general, Bill Barr, has made very clear he'd follow existing Department of Justice guidance which prevents a sitting President from being charged with a crime. If Trump gets creative, perhaps he could a try to use a preemptive self-pardon to deal with a potential future federal tax judgment against him. The IRS, for instance, says he incorrectly claimed a $72.9 million tax write-off, according to the New York Times reporting on his tax returns.
But once again, a pardon - whether granted by a succeeding president (like Mike Pence) or the president himself, is, at base, an admission of guilt. And that sort of guilt can neither be lived down nor denied by calling it a hoax. A pardon would make a 2024 presidential redux next to impossible . . . no matter how many apostles still believe he walks on water and makes Abraham Lincoln look like an also-ran.
As I stated at the outset, no matter which path Trump chooses to take, he will find himself in the middle of a lose-lose predicament. Let’s pray for him like the rabbi in Fiddler on the Roof prayed for the Tsar:
May G-d bless and keep Donald Trump . . . far away from us.
36 days until the Georgia election.
51 days until Biden and Harris are inaugurated.
Copyright©2020 Kurt F. Stone