On the Use of the Pardon

The soon-ex-president held the traditional turkey pardon yesterday which was followed by pardoning a metaphorical turkey, Michael Flynn. Earlier pardons in Trump’s administration include letting a racist murderer off the hook.

The news media are filled with speculation about how many more pardons will be issued and whether and how he might try to pardon himself. Several conservative commentators noted that Democrats have also issued controversial pardons. Omitted from their observations is that none of these pardons were actually designed to protect the president himself from prosecution.

In fact, even Richard Nixon declined to use his power to pardon those who were convicted of helping him by committing crimes. Haldeman, Ehrlichman, Mitchell and Dean all served their sentences and never received pardons. Nixon may have been himself a criminal, and certainly needed Ford’s pardon in order to avoid his own prosecution, but evidently as corrupt as Nixon was he understood that pardoning his abettors would be an inexcusable abuse of power.

Consider that despite all the shouting of “Lock her up” for five years now, Barack Obama did not choose to issue a pardon for Hillary Clinton. I think he had two reasons for this. First, as a fine constitutional scholar in his own right, Obama would have regarded such an act as an abuse of power. Second, he certainly didn’t consider her guilty of any crimes and thought there to be no possibility that she would ever be charged. Indeed, the lack of charges against her, even from arguably the worst Attorney General in US history, proves that point.

What we are seeing now, like so many other deplorable things associated with this administration, is an unprecedented abuse of power. He is literally paying off those who assisted him in multiple criminal offenses and defrauding the citizenry.

There is rampant speculation that Trump will resign shortly before January 20 in order to allow Pence to pardon him. While that would not surprise me, I don’t think it’s all that likely. First, I’m not sure Pence would do it. Pence is one of the few people in the administration who probably has not committed a crime. I disagree with him on almost every political issue, but I don’t think he’s a crook. And second, that would require Trump to resign–and I don’t think he’s mentally able to do that.

Another strategy that is the subject of speculation is the possibility that he would try to pardon himself. So far every constitutional scholar I’ve seen comment on this has argued that such a pardon would be unconstitutional on several different grounds such as the technical definition of the term “grant.”

This issue is one of the most important reasons that Mr. Biden should not pardon him. It will probably take some sort of constitutional amendment to fix the possibility of abuse of power via the pardon and we all know how difficult that process can be. So we need other ways to caution a president against such abuses of power. The obvious remedy is impeachment, but we have learned from Mitch McConnell that that remedy can be politically unavailable. Since we have learned that the remedy the Founders provided to end public corruption can be flouted, we need presidents to understand that they may still be subject to prosecution.

One aspect of this issue that is interesting is one that I thought Trump understood, but perhaps not. Many commentators argued that the reason why Trump commuted Roger Stone’s sentence rather than pardoning him was that had he pardoned him, Stone could no longer plead the 5th amendment against self-incrimination in any subsequent court actions against Trump. That also implies that Michael Flynn, pardoned yesterday, loses that protection. In other words, Flynn can be summoned to court and compelled to testify. If he refuses, he can be charged with obstruction of justice, impeding a prosecution, etc If he lies, that’s a new crime he can be prosecuted for. So there is at least a chance that could lead to more factual revelations about Trump’s guilt in his official duties.

Finally, it is crystal clear that that one reason Trump is so desperately trying to cling to power is that he does understand that indictment in State court is imminent, and no one believes he can pardon himself for the multitude of crimes he has committed in NY State. Recall that he had to shut down his charity and pay a $2M fine because he ran it as his personal piggy bank. Sadly, he ran the entire US Treasury as his personal piggy bank, and it is long past time that we prove that no one in the US is above the law.

2 thoughts on “On the Use of the Pardon

  1. Thanks for taking the time to comment, David. My only correction isn’t really a correction–I have disliked Trump for much longer than the time we first met. I despised him for erecting billboards calling for the execution of black children who turned out to be innocent of the crime they were accused of–proven incontrovertibly by DNA. I despised him for his racist attacks on Barack Obama’s election. I disliked him because long before he was president I knew he was a con man who had flim-flammed people in his seven bankruptcies. I was disgusted by his felony draft dodging. I was revulsed by his pedophilia, and found his treatment of women especially his own wives to be beyond contempt.

    Since his election, I learned that that he committed many more felonies and was fine with seeing the people who committed felonies on his behalf go to prison for him. I have a sneaky feeling that one person who will not be receiving a pardon is his former attorney, Michael Cohen, who had the audacity to admit that in committing his crimes, he was acting on Trump’s orders.

    I’m glad that we are friends, but I doubt we’ll ever see eye-to-eye on Trump. What I’ll probably never understand is how people who claim to be committed to yir’at shamayim, the reverence of an Almighty, can possibly lend their names to this man who among other things, has violated every one of the Ten Commandments.

  2. Rampant speculation is a funny thing.
    In the right corner of my world I hear rampant speculation that Trump won the election and the Supreme Court will verify this sooner than later. I have not heard any speculation, rampant or otherwise, that Trump is going to resign anything.
    You have hated him since I met you, I guess it is right about four years now, and part of me wanted Trump to lose just so I can enjoy thoughtful conversations with you once he is out of the way. Selfish, I realize, but it seems likely Trump doesn’t give a damn about me either.

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