Over at The Hill, Bill Press launches into a predictive flight of fancy as to how President Donald J. Trump’s last day in office will play out on Jan. 20, 2021.As his final act before stepping out of the Oval Office for the last time, President Trump will issue “a full prospective, presidential pardon to the person who has been the most unfairly investigated and persecuted by our corrupt system of justice: Donald J. Trump.” This presumably will follow a flurry of other pardons for many of the President’s friends and loyalists who might be facing investigations of their own under the new Democratic administration and Chuck Schumer’s tenure as Senate Majority Leader. In Bill Press’ world, Trump is going to probably come down with writer’s cramp before the morning is out.
How much of this is playful fantasy fodder? Press claims that while he’s not a betting man, he would bet the ranch on this one. And he goes on to explain how Trump is not only plotting this course of action already but has legal precedent to get away with it and the courts couldn’t lay a finger on him to prevent it.
A president pardoning himself? Don’t laugh. While that issue’s never been addressed by the Supreme Court, Trump’s not the first one to think about it. He’s already said Article II “allows me to do whatever I want.” Richard Nixon’s White House lawyers seriously considered the possibility, but Nixon decided to resign before being indicted with a crime. In 1998, however, during the Clinton impeachment hearings, House Judiciary Committee member Bob Goodlatte (R-Va.) stated: “The prevailing opinion is that the president can pardon himself.”
But wait, White House officials could even be pardoned for crimes they haven’t even been charged with yet? Again, don’t laugh. It’s already happened. One month after he resigned, Gerald Ford gave Nixon a “full, free and absolute pardon” for all federal crimes he “committed or may have committed” during his presidency – thereby making it impossible to charge him with anything. And, in 1992, shortly before leaving office, President George W. Bush pulled the rug out from under special counsel Lawrence E. Walsh by granting a full pardon to six Reagan officials, including Defense Secretary Caspar Weinberger, under investigation in the Iran-Contra Affair. Walsh had no choice but to drop his case.
Obviously, Mr. Press is engaging in some speculation that still rests on several very large assumptions. The first, and perhaps biggest, is that Donald Trump won’t win a second term. Yes, his numbers are looking pretty shaky right now, even in some of the battleground states he will need to secure a second term. But there’s still more than three months to go, and as history has shown us, that can be an eternity in politics. Also, the nation is in a state of complete upheaval on two totally unrelated fronts. How those middle class, largely suburban voters will lean if it looks increasingly like the riots may be heading for their own doorsteps could come as an unpleasant surprise to Joe Biden and the Democrats. Also, if the economy can even make it into second gear by October (as opposed to Park or even Reverse as it is now), Trump could easily see the boost he needs in the purple states to pull off another 2016-style electoral college win.
Aslo, as we’ve discussed here before, the Democrats are far from certain bets to take over the Senate Majority office. And without both chambers, there will be more infighting going on than anything else. But with all of that said, let’s look at the actual pardon question that spurred all of this.
Before asking if Trump could pardon himself, we should consider whether or not he would, assuming he manages to lose the election. While there was plenty of talk about Hillary Clinton (“lock her up!”) during the 2016 election, I don’t think anyone believed that the Trump DoJ was going to seriously pursue such a plan. And they didn’t. Would the same apply to Donald Trump after he’s no longer in office? I’m not so sure about that. The way that Democratic prosecutors and judges around the nation have gone after him thus far, particularly in Manhattan, if they sense there’s any blood in the water I’d bet dollars to donuts that they would give it a run. A lot of people didn’t much like Hillary Clinton, but that distaste doesn’t come anywhere near the visceral hatred of President Trump on display on the left. Even with a President Joe Biden in office, the idea of vengeance won’t be far from the minds of many of his supporters for quite a while.
Whatever the charges wound up being – and your guess is as good as mine as to what they might be – that threat might be enough for Trump to break out the pardon pen. But would it work? As Bill Bress points out, while it’s never actually happened, there’s plenty of precedent in terms of Presidents exploring the idea, from Nixon to Bill Clinton. The Supreme Court has never needed to weigh in on the subject but the prevailing opinion seems to be that there’s nothing really stopping him from doing it.
But that’s only for federal crimes. Could the states still go after Donald Trump as a civilian? It sure sounds like they could. If it was for some sort of crime committed through one of his businesses, rather than any actions he took while in office, he would likely be just as vulnerable as any other citizen. It would be the height of mean-spirited warping of the legal system to obtain partisan, political satisfaction, but you could certainly see it happening.
So is that where we’ve arrived in 2020? Presidents needing to pardon themselves to prevent retribution from the previously politically vanquished? Perhaps. But a small part of me thinks that we haven’t gone that far over the waterfall just yet, and Trump’s perceived sins will fade in the minds of most liberal voters as they celebrate their return to power. Assuming that happens. And, again… that remains a significant assumption.
