I’m pleasantly surprised to report that, although there are certainly bad pardons coming later today or tomorrow morning, there may not be any that are dry-heave bad. No self-pardon. No pardons for the Trump progeny. None for Rudy Giuliani or Steve Bannon or Julian Assange or Edward Snowden. And none for anyone associated with the attack on the Capitol.
The worst we might do is a freebie for disgraced New York state lawmaker Sheldon Silver, a corrupt swamp monster if ever there was one. Not a great outcome, but a hell of a lot better than, say, pardoning Robert Bales.
What convinced Trump to straighten up instead of launching into the W-T-F clemency cavalcade for all manner of crooks, rogues, and war criminals that we expected? Two things. One: He’s suddenly in a lot of political and potentially even criminal jeopardy after the attack on the Capitol and isn’t in a position to antagonize his enemies. Two: Instead of having Rudy Giuliani advising him, he’s got White House counsel Pat Cipollone. According to various reports over the past week, including this new one from CNN, Cipollone and his aides have terrified Trump with warnings of criminal exposure if he does anything to signal that he’s not contrite about what happened at the Capitol. (Cipollone reportedly even helped write the script for the “no more violence” video Trump posted last week.) I think the threat of Trump being prosecuted for incitement is overblown, but other threats are more credible. Anything he does with pardons now that pisses off Senate Republicans raises the chances of him being convicted at his impeachment trial. And anything he does that pisses off Democrats raises the chances of him being prosecuted by liberal state AGs in New York and elsewhere.
The fallout of the attack is forcing him to choose between protecting himself and protecting his loyal cronies who are in legal jeopardy. Guess what he’s going to choose.
Huddled for a lengthy meeting with his legal advisers, Trump was warned the pardons he once hoped to bestow upon his family and even himself would place him in a legally perilous position, convey the appearance of guilt and potentially make him more vulnerable to reprisals…
White House counsel Pat Cipollone and another attorney who represented Trump in his first impeachment trial, Eric Herschmann, offered the grave warnings as Trump, his daughter Ivanka and her husband Jared Kushner listened. Other lawyers joined by telephone. They all told Trump he should not pardon himself, his family or any GOP lawmakers in a prospective manner unless he was prepared to list specific crimes…
While Trump often discards advice he doesn’t agree with — particularly coming from Cipollone, with whom he has a fractured relationship — the message Saturday resonated. The conversation spooked Trump in a way few others have, a person familiar with his reaction told CNN…
Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.
Reportedly lots of people connected to the rally are worried about being charged, from Don Jr to GOP reps who spoke there like Paul Gosar and Andy Biggs to even the rioters at the Capitol. More than one person who’s been criminally charged has told the media recently that they hope, or even expect, that their hero the president will do the right thing and let them walk free. The defense lawyer for the so-called QAnon Shaman says he’s already reached out to Mark Meadows about a pardon — but sounds ambivalent about whether he hopes Trump grants it. Quote: “If Chansley is not granted a pardon, attorney Albert Watkins said, it could offer the added benefit of further awakening his client to the fact that his devotion to Trump has not been reciprocated, comparing it to being a jilted lover or even a member of a cult.”
Yeah, that’s a pickle for Trump right now. If he decides to save his own skin by not granting his most diehard supporters a pardon, some of those supporters will feel betrayed. They were willing to risk death for him in order to stop Biden from “stealing” the election and he can’t even reward them with pardons on his final day in power? Isn’t loyalty a two-way street?
Gonna be some mighty disillusioned QAnon fans out there tomorrow. “Disillusioned” relatively speaking, of course.
His decision not to pardon certain other people is straightforward. He’s not pardoning himself because, frankly, it would look terrible to nearly everyone and almost certainly wouldn’t stand up after SCOTUS got done with it, knowing how a precedent like that would be abused. He’s not pardoning Snowden or Assange either, mainly because Senate Republicans hate both and a move like that might anger enough of them to get to 67 for conviction and disqualification from office. (Once upon a time, in fact, Trump himself hated Snowden.) There’s no word of the notorious war criminal Robert Bales being pardoned either, possibly because that’d be disgraceful even by Trump standards.
But other non-pardons are harder to explain. He and Steve Bannon have reportedly been in touch lately and yet Bannon isn’t in line for a pardon either — right now. NYT reporter Maggie Haberman thinks that may be because of an old grudge between Bannon and Jared Kushner, with Kushner stepping in to advise Trump not to grant one. I don’t understand why Rudy Giuliani isn’t being pardoned, as Rudy has potential criminal trouble from the Ukraine business last year and, well, from stuff like this:
A onetime top adviser to the Trump campaign was paid $50,000 to help seek a pardon for John Kiriakou, a former C.I.A. officer convicted of illegally disclosing classified information, and agreed to a $50,000 bonus if the president granted it, according to a copy of an agreement.
And Mr. Kiriakou was separately told that Mr. Trump’s personal lawyer Rudolph W. Giuliani could help him secure a pardon for $2 million. Mr. Kiriakou rejected the offer, but an associate, fearing that Mr. Giuliani was illegally selling pardons, alerted the F.B.I. Mr. Giuliani challenged this characterization.
No one outside of the Trump family has been more loyal to Trump than Giuliani. Why wouldn’t he want to hand Rudy a get-out-of-jail free card? Surely that alone wouldn’t tip the balance in the Senate from acquittal at his upcoming trial to conviction. In fact, if it’s true that Senate Republicans intend to argue that they can’t convict Trump because they can’t try an official who’s already left office (which isn’t true) then it shouldn’t matter how dubious Trump’s final pardons are. If the Senate GOP won’t convict on the theory that they lack jurisdiction, then they lack jurisdiction even if he pardons Snowden, Assange, and Rudy.
The one I really can’t figure out, though, is why he’s not pardoning his kids. The most obvious explanation is that he’s afraid of painting a bullseye on them for state prosecutors who’ll want to see to it that the Trump kids can’t escape justice if they’ve done something wrong just because their dad was president, but state prosecutors are going to be interested in the Trump kids anyway. Maybe it’s as simple as this: He knows Don Jr and Ivanka may seek office at some point and doesn’t want future opponents to hold their pardons over their heads as circumstantial evidence that they’ve committed crimes. Besides, it’s unlikely that the Biden DOJ would try to prosecute them anyway for the simple reason that Joe Biden’s son is in criminal trouble himself with the Justice Department. Unless they have an airtight case against one of the Trump children, a prosecution would reek of score-settling and trying to distract the public from Hunter Biden’s problems.
But still, it’s not like Trump to show restraint. If it’s within his power to grant formal impunity to a close ally, his instinct is to do it. He has 19 hours left in office as I write this. Stay tuned.