A leftover from yesterday that made me laugh, until I thought, “Wait, why do I think this is far-fetched?”
It’s insane to the point of hallucinatory lunacy, but, well, just look at the news lately.
If this were a movie, Trump would pardon all of his cronies and then resign so that Pence could pardon him — except that Pence, feeling a pang of conscience, would decide that he couldn’t do it and would end up double-crossing him. The final scene would be an irate Trump being dragged off by the FBI while a disgruntled Bill Barr smiles at Pence and flashes him a thumbs up.
In reality, though, the idea of Pence experiencing a Trump-related pang of conscience is farcical. Watch, then read on.
.@NewYorkStateAG @TishJames tells @TheView that “it’s important to understand” that if Pres. Trump is pardoned, “he is not pardoned from state crimes”: “President Trump cannot avoid justice in the great state of New York.” https://t.co/cVclFZyKV0 pic.twitter.com/4pknlbOcEa
— The View (@TheView) December 9, 2020
The pardon issue is actually a tough one for Never Trumpers. On the one hand, the idea of the president gifting “get out of jail free” cards to his cronies en route to the exit is unutterably disgusting:
Behind the scenes: Trump recently told one adviser he was going to pardon “every person who ever talked to me,” suggesting an even larger pardon blitz to come. As with most Trump conversations, the adviser wasn’t sure how seriously to take the president — although Trump gave no indication he was joking…
Trump has also interrupted conversations to spontaneously suggest that he add the person he’s speaking with to his pardon list, these sources said…
One source felt awkward because the president was clearly trying to be helpful but the adviser didn’t believe they had committed any crimes.
The adviser also believed being on the list could hurt their public persona.
Imagine being so corrupt that you’re willing to grant some buddy a pardon as a precaution, without having any reason to believe he’d done anything wrong. It’s almost like prison “insurance”: Just in case the feds find out you’ve done something criminal in the past, here you go. You’re off the hook. What if it turns out later that person has done something unspeakable?
On the other hand, anyone who’s worried about a Trump 2024 run should probably be rooting for him to get crazy with the pardon cheez whiz. It’ll leave a bad taste in voters’ mouths, which will hurt him if/when he runs again.
Republicans are split roughly 50/15 on every potential pardon except Kushner’s (where they’re at 41/14), which is weak support for a Trump initiative by the usual standards. Maybe that’ll change once this moves from the realm of discussion to reality, when loyalty will once again require righties to support some grossly improper act that the president’s decided to take. But it’s destined to alienate some “soft” Trump supporters among Republicans and independents. And a man who just lost the popular vote for a second time because many Americans believe he’s unfit for office can’t much afford to continue building that case against himself.
The sticky prospect in all of this is the self-pardon. I don’t think Trump would resign to give Pence the opportunity to grant him a “clean” pardon. An audacious pardoning of himself is a much Trumpier scenario, although I wonder if yesterday’s Supreme Court ruling is making him rethink how much he can count on Gorsuch, Kavanaugh, and Barrett to show “loyalty” if and when the constitutionality of a self-pardon comes before them. If you missed it, take a minute to read this op-ed by J. Michael Luttig making the case that a self-pardon would indeed be illegal. I wrote about Luttig not long ago; for years he was a judge on the Fourth Circuit and a conservative judicial megastar, a shortlister for SCOTUS appointments. It’s noteworthy that he’s out in front of this issue, lending an impeccable Federalist Society pedigree to the “controversial” view that Trump shouldn’t be allowed to place himself above the law.
So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power — a power in the sovereign that was little known to the Framers, if known at all.
Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity. There, without so much as a hint of a president’s power to avoid criminal liability through self-pardon, they provided that even “in Cases of Impeachment,” for which the president can only be removed and disqualified from holding high federal office, “the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.
I’m not sure I’m with him on that second point. Article II makes an express exception to the pardon power only “in cases of impeachment.” Does that mean, logically, that the president *can* pardon himself for offenses for which he wasn’t impeached?
We don’t need to overthink it. Two simple points. One: People who revolted against a king and set up a constitutional republic obviously didn’t intend for the new head of state to enjoy kingly privilege to flout the law. Two: A constitutional system based on limited powers obviously doesn’t contemplate anyone enjoying unlimited power to commit crimes. Everything else surrounding this issue is noise.
I don’t think he’ll end up granting himself a pardon. He may pardon his kids but a self-pardon would be so nakedly and shabbily corrupt that it would do him more harm than good. Especially if you think, as I do, that Biden’s DOJ will want to move on from Trump rather than prosecute him for something lest that prosecution consume the entirety of American politics during Biden’s presidency. If there’s to be any legal action, that action will be at the state level. And the woman in the clip above is apt to be Trump’s most eager antagonist.