Rubio: If Trump pardons Manafort, we might need a national debate about amending the pardon power

A leftover from yesterday. The Q&A here is about Manafort but obviously the argument applies to everyone in the president’s personal orbit, starting with his children. If you’re inclined to scold Rubio by noting that Trump hasn’t pardoned Manafort or Roger Stone or anyone else related to Russiagate yet, that’s fine but (a) he’s spoken openly about the possibility; (b) he’s gone so far as to contrast Stone’s behavior with Michael Cohen’s, a hint to other potential witnesses against him that they might be rewarded if they refuse to cooperate; and (c) there’s simply no way Trump is going to sit by and let Don Jr go to prison, if it comes to that. I think the odds of him pardoning Manafort are better than 50/50 but the odds of him pardoning his son if and when he’s indicted approach 100/0. All of which is to say, one way or another, we almost certainly will eventually be debating whether a president should have the power to pardon his own cronies even if we’re not debating it just yet.

Also, it should go without saying that no amendment would pass in time to block Trump from pardoning whoever he wants. The amendment process takes years. What Rubio means here is that the example of Trump pardoning cronies would inspire so much public disgust that Americans might resolve to pass something that would prevent future presidents from doing the same thing. The Framers calculated that no specific textual limits on the power were needed, as either shame or fear of a backlash at the polls would discourage a president from abusing pardons. But what if a particular president wasn’t prone to shame, and had convinced himself that he was the subject of a “witch hunt”? And what if partisanship in America had deteriorated to the point where most of his party would back him up on literally anything he wanted to do, as he himself once famously acknowledged?

If Trump pardons his inner circle and the power isn’t reformed afterward, a future president is destined to be influenced by that precedent. Granted, he won’t be eager to associate himself with Trump’s behavior, but the fact remains that the Overton window will have been moved (the whole point of Trump’s presidency!) and a politician who’s in trouble and under pressure will be tempted to avail himself of it. In an extreme case, a president might try to pardon himself. Either way, to an unscrupulous wielder the power becomes a de facto license to break the law with impunity. To prevent that, the country would have to rewrite the pardon power.

Might not be easy, though. Would an amendment place procedural or substantive limits on the power? Substantive limits would involve specifying whom the president can’t pardon — family members, say, plus anyone who worked for him in a political or private context. But then you’d have to define how close those relationships need to be to trigger exemption (or else trust the courts to do it for you). What if someone didn’t work directly for the president but merely at the same organization? What if they were very low-ranking and didn’t have some close personal or working relationship with him? What about political donors? Surely they’d be blocked from being pardoned. But how much money would they need to have donated to trigger that block? Does any amount do it or only Sheldon-Adelson-type money? What if the donor has contributed only to a Super PAC that supports the president rather than the president’s campaign?

The way out here might be to ignore the substantive limits and stick with procedural ones instead. Short and sweet: All future pardons are subject to the advice and consent of the Senate. But that’s not foolproof either. If the whole problem is that rank-and-file partisans are so blindly loyal to their leaders that they’d otherwise be willing to let the president pardon any crony he likes, even himself, then requiring the approval of a Senate majority isn’t demanding much if that majority comes from his own party. How confident are you that the new GOP Senate majority next year would torpedo a pardon for Don Jr, knowing how the GOP base would be clamoring for it to happen? By the same token, imagine if the Senate majority were composed of members of the opposite party. In that case, pardons for deserving recipients might conceivably be blocked just because the recipient is a member of the other team.

I don’t think there’ll be any momentum to amend the pardon power unless Trump does something really nutty with it, like pardoning himself or pardoning the entire cast of characters from Russiagate rather than just Don Jr, say. Because the process of ratification takes so long, it would probably run out of steam as people’s memories of Trump faded. Republicans might oppose it on principle, because they believe in strong executive power, or out of expedience, because supporting an amendment would be tantamount to admitting that Trump had abused the power. Anyway, this debate is probably coming next year.