What a week we just had. Each one seems wilder, with more (and more significant) revelations & developments. It’s only Monday and we’re off & running with new stuff so who knows how crazy this one will get. However, when you think about it the news at the end of last week (including the weekend) that the President was asking his attorney’s about his Pardon powers (even though he’s old enough to have had to pass civics & should have known already what they were) shouldn’t have been a surprise. It wasn’t a question of if that trial balloon would be floated in the media, but when. Nor should the expected Saturday morning tweet storm where he touted his power to Pardon have surprised anyone. Is there anyone who didn’t think he’d eventually get around to claiming & seeking justification of the wild notion that Presidents can even Pardon themselves?
I too am old enough to have had to pass civics. In fact we had a round of it in 8th grade as well as in high school. As it happens I was in high school when Watergate took place. There happened to be quite a few great teachers in my small home town, and I’ve remembered much of what they taught me all these decades later including most of my civics education, including discussions in class about things like whether a sitting President could be indicted & even the Framer’s intent in the clause of the Constitution about the President’s powers to Pardon – as in could Nixon Pardon himself. What I was taught was the answer was no. If I remember the discussion was mostly about the Framer’s intent and there is enough from that time to make it clear the answer was no. However, in recent days I’ve been looking up some details on Presidential Pardons I’ve either forgotten or never learned in the first place.
I’d like to take a detour for a minute though, because it’s relevant to the why anyone in this administration wants or perhaps more accurately needs one as I will show later.
Both here on Kos and elsewhere it’s been noted the issue of whether a sitting President can or can’t be indicted has been seriously considered, during both Watergate and during the Clinton years. For those who don’t know or don’t remember,although Leon Jaworski (the Watergate Special Prosecutor) declined to have his Grand Jury issue an indictment of Nixon he & DOJ determined doing so would be Constitutional. However, as I said when push came to shove Jaworski decided not to have that view tested in court – as it surely would have been. These days a conservative would discount this as some “liberal” going after a conservative President. Yes, he’d supported LBJ at one time but supported and voted for Nixon twice - and then Bush 41 starting in1980. But there’s a second “Special Prosecutor” (by then called an Independent Counsel) to consider. That would be Ken Starr who went after Clinton with a zeal/vengeance some compared to the fictional Inspector Javert.
A few days ago a memo prepared by Starr “seconded” the Watergate era DOJ conclusion that a sitting President can in fact be indicted. The potential for irony of a GOP persecution prosecutions of a Democratic President doesn’t end there however. Starr fought for and won the ability to interview Secret Service agents on Clinton’s detail. He even fought for, with partial success to pierce the shield of Attorney/Client privilege. A recent piece in POLITICO sums it up nicely:
http://www.politico.com/story/2017/06/07/trump-clinton-russia-probe-mueller-239212
The GOP wasn’t clamoring to reign in Starr during all this & in fact were cheering like me rooting for my beloved Cubs. Those were the lengths the GOP was willing to go to in order to “get” Bill Clinton. If a few were troubled at how the investigation wandered through so many fields far from the original issue (the Whitewater land development deal) they were few and far between, although in the end it must be noted that although Impeached by the House, not enough GOP types would get on board to provide the two-thirds necessary for conviction (and removal from Office) in the Senate. But they were fine, just fine mind you with how Ken Starr pushed all the boundaries including voiding even attorney/client privilege in “special cases” (“special” being a Democrat being accused I guess) and bemoaned the fact that when Clinton hired outside counsel attempts (although it wound up not being litigated in court but they thought about it) to even have access to consultations with Clinton’s private attorney (no govt. paycheck) David Kendall! Taken together we have some serious precedent for what Mueller COULD do, and if many are too young to remember Watergate a whole lot more were alive during the late1990s.
How deliciously ironic would it be to see THIS President hoisted on a petard of his own Party’s (mostly) creation?
I don’t happen to think a straight arrow like Mueller would resort to some of Ken Starr’s antics – nor would he need to as we are increasingly seeing every day or at least every week. Evidence is slowly but surely being obtained and it’s not the “golden” picture of Trump with his wife & son (Barron) in that ridiculous pose in Trump Tower, but rather a dumpy old Trump in (seemingly) Depends underwear trying to hack his golf ball in the weeds. Or worse images I won’t describe. Use your imagination if you want.
That brings us to the fact the President and others know they are up to their necks, if not their noses in legal deep shit – hence the trial balloon about pardons late last week. And I firmly believe it was a trial balloon floated (in a rare example of competence) by the White House to gage GOP Congressional reaction – IOW would most of the GOP Congress Critters (again) signal willingness to cover his ass or would it have a similar effect that some of the stunts with the tapes did during Watergate? We are far from a definitive answer, and the weekend Tweet Storm combined with Trump ignoring even good advice from people well qualified to offer it is such that one never knows. If the White House Office of Pardons (there is such a thing) won’t draw up the pardon paperwork/letter(s) Trump could (and might) call on one of his New York hacks like Kasowitz to do it for him.
However, as of recently he does now have at least one competent (regarding the DC type of mess he’s in) attorney and he’s no doubt been told that a pardon to himself (and others) would be taken as an admission of guilt, even by many in his own Party. And it might not matter if his adoring base didn’t see it that way or worse (for the country) didn’t care. What’s important is that if the thing that scares Donald Trump the most is not being seen as fabulously rich, even that is part of a larger picture regarding his overall image. Being perceived as guilty, including and especially of financial crimes like money laundering for Russian oligarchs/thugs would put a serious damper on his “winning” image. That might even be the crack in his armor with his base, although that might (and likely is) wishful thinking but it’s a risk that at least for now Trump isn’t willing to take.
More importantly, and unlike the stuff about indictments and who can be interviewed/questioned or be forced to turn over what once had been (legally) considered privileged information the issue of a Pardon being an admission of guilt has in fact been litigated – up to and including SCOTUS. There are two cases I’d like to talk about.
The first is United States v. Wilson, 32U.S. 150 (1833) in which a man named George Wilson was sentenced to death (by hanging) for robbing the U.S. Mail in Pennsylvania. He had powerful enough friends that Andrew Jackson was convinced to issue a Pardon. Wilson refused to accept it and the case made its way to SCOTUS who ruled that if a person rejects said Pardon it isn’t in effect and the Court can’t force it them. IOW if you reject the Pardon then plainly speaking it doesn’t exist/” count”. Wilson wound up being hanged. The key phrase in the Court’s decision read "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it is rejected, we have discovered no power in this court to force it upon him." If the Court didn’t take the reasoning to its logical conclusion, any reasonable person could infer that accepting the Pardon means you wanted and/or needed it because you were guilty. In Wilson’s case he’d been sentenced to hang and his buddies got him a Pardon, but he chose to hang rather than admit (as the Pardon implied) he was in fact guilty and deserved to be put to death. One supposes he could handle someone else saying he was guilty but not being able to admit it via accepting the Pardon that he really was. Regardless, because SCOTUS implied rather than stated outright that acceptance of a Pardon is an admission of guilt the fact is it left (for a while at least) a bit of wiggle room. A less extreme example than Wilson might be someone who in modern (after the mid 1970s) times who accepts what’s called an “Alford Plea” — knowing they are guilty but wants to save face by not actually admitting it in court. (For those who don’t know an Alford Plea means a defendant acknowledges the evidence will lead to a conviction so they plead to a lessor — but still serious charge and punishment — without admitting guilt) That btw is a type of Pyrrhic victory with which Trump is already familiar btw. While not an Alford plea he and his dad settled a huge housing discrimination case early in his “career” by paying a fine but not having to admit guilt.
The second case which is more “on point” is Burdick v. UnitedStates, 236 U.S. 79 (1915). Attached is a link from FindLaw regarding the case:
http://caselaw.findlaw.com/us-supreme-court/236/79.html
If you don’t want to read the whole thing, the relevant (to the title of this diary) section of the decision by Justice McKenna is here with a key part emphasized (in bold):
“Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by [236 U.S. 79, 91] confession of guilt implied in the acceptance of a pardon may be rejected,- preferring to be the victim of the law rather than its acknowledged transgressor,-preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme. 'It may be supposed,' the court said in United States v. Wilson, 'that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment.'”
Remember when I said that detour at the beginning would be relevant? Here’s why. There are other parts of the Burdick decision supporting the contention in the title of this diary. It’s also worth noting this SCOTUS ruling addresses an issue relevant both in Watergate and potentially now. Nixon had not actually been charged with any crimes, and Ford’s Pardon was both “blanket” and “pre-emptive” scope and nature. Certain crimes (especially Obstruction of Justice) were ready to go for indictment in the Grand Jury but (at the time/for the moment at least) despite a finding that a sitting President could be indicted Jaworski prevailed on them not to issue that indictment. But other criminal acts by Nixon were in the pipeline for indictment. Ford always believed, with SCOTUS backing him up that Nixon’s Pardon and the fact Nixon accepted it was proof of his guilt. In fact he (Ford) kept a card in his wallet afterwards with the Burdick decision printed on it.
But on the broader point, Burdick addresses specifics in that case that are directly related to aspects of Watergate and now “Russia-gate.” They include the matter of a Pardon for uncharged crimes that might one day be prosecuted still being (should it be accepted) as being equal to guilt/conviction as the Pardon frees someone from the legal consequences of criminal acts. They also include upholding and reinforcing the notion that while a Pardon may be rejected by someone to whom it has been granted, they must reject the Pardon in a related legal proceeding or it is assumed to be in force. While I don’t put it past this President to issue a “self-Pardon” then turn around and Tweet that it doesn’t mean he’s guilty, Twitter is not a legal forum. And if not now, at some point someone could secure an indictment and haul his ass into court where he could either face trial (and conviction) or formally and legally (by using it in court) accept his Pardon – and more to the point his need for one because he’s freaking guilty!
Ty Cobb is as formidable a figure as Trump has ever encountered. He’s successful and his skills are highly regarded in the highest of legal circles. If he’s a hard-nosed brawler at times (which is probably what Trump likes about him) he’s also someone who won’t put up with any bullshit, and that includes from himself as in sugar-coating his advice because his client (our man-baby President) might throw a tantrum and yell at him. Cobb will yell right back. He’s not going to lose his way of life or reputation if Trump fires him (quite possible) in a fit of pique. I read a diary over the weekend (can’t remember whose – sorry I can’t credit you whomever you are) that suggested Cobb took the measure of goings on and had a stern “talking to” to the President already. My guess is that then, or late last week he had another one on this Pardon business.
My guess is that while incredulous the President would need to be told just how broad his powers were in this area (although not so far as to Pardon himself – that’s a battle that he’d almost certainly lose if he tried and Cobb surely told him so) he also made a few other points. Forcefully and in language his client would “get.”
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Pardons = guilt. The Supreme Court has actually ruled on it. Anyone you Pardon can refuse it but that means taking their chances in court. And those chances aren’t good for a lot of you folks. Even you Mr. President on the charge that did in Nixon and that you are facing – Obstruction of Justice.
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Pardons = guilt. And with all the other stuff that can already be used, they can be added to the case of Obstruction of Justice against YOU. It will look to at least three quarters of the country and plenty of even GOP folks on the hill like you are covering your ass by pardoning guilty people. That will hurt you image both here and with our allies abroad. Don’t let the “fun” of the Diplomatic Bells and whistle go to your head. Your legacy will be trash around the world.
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Pardons = guilt. SCOTUS says so and that means that people you pardon can’t plead the 5th when called to testify. That’s right. Legally they can be treated as unindicted co-conspirators and if they refuse to cooperate a judge can throw them in jail for contempt. And that will make you look ever worse than you already do on the Obstruction of Justice thing.
- So remember – Pardons = guilt. If you ARE going to issue them only do it AFTER there’s no other choice. And given what they might say to a Grand Jury maybe not even then.
Yes, I think Cobb has the gumption to talk to the President like this. I truly believe if he hadn’t the White House’s Friday “take out the trash” announcements would have already included a Pardon or two.
So where are we? We’ve still got a petulant, classic (as in DSM criteria for the disorder) Narcissist prone to self-destructive outbursts & other behaviors – not just since he’d been in the White House but for his entire life. Oh, and he’s being squeezed between the proverbial rock and hard place. He’s facing enormous legal pressures not just for himself but his family. He doesn’t care about all the others, but he might have some concern for his kids – at least Ivanka. But Ivanka’s husband has been ahead of him in the legal maneuvering to stay out of or at least minimize the trouble all of them are in – and he’s got no more regard for Trump than others. Trump also now has a first rate attorney as plugged into the DC scene as anyone, and who doesn’t need his money or the aggravation that goes with working with him –a tough as nails guy not the least bit afraid of his boss and who, if Trump tried to proverbially shoot the messenger would take the gun out of his hands and beat him with it. And that attorney might well have partially gotten through to him on how bad things are, how much worse they can get, who exactly can turn on him and is likely todo so (or already has & finally that his “out” (self Pardon) isn’t a viable option. On the other side he’s got a ruthless and murderous Russian dictator with plenty of pals who could ruin him financially and who are putting the screws to him to get sanctions lifted so they can both get richer and launder their dirty money. Which one you choose to label the rock and which the hard place doesn’t matter. It’s one hell of a squeeze.
Because Pardons = guilt, both legally and in public perception which is why even if (and that’s a big if) he accepts advice that he can’t Pardon himself issuing Pardon’s to others, even his family will only make the case for obstruction of justice against him worse. In addition to that, it makes STATE charges (for financial crimes) that much easier to prove.