As Trump’s ship sinks, his pardoning spree continues. While shady presidential pardons are nothing new or unexpected, the vast majority of Trump’s have been downright reprehensible -- to nobody’s surprise. However, some of his latest parting gifts may be pushing him across a line that will cause them to blow up in his face.
Close study reveals that there is much about the practical effects of presidential pardons that is either unsettled, or fairly complex to interpret under the law. Two areas that have gotten recent media attention are:
- Self-Pardon Validity
Can Trump pardon himself? The answer is a definite “We won’t know unless/until he tries it, and the Supreme Court decides”. Nothing is in place to prevent Trump from issuing a self-pardon, and he is very likely do so. The real question is whether such a pardon will hold up. There are opinions from legal scholars on both sides, but they all agree that it will need to be decided by SCOTUS, and that won’t happen until there is an attempt to prosecute a self-pardoned president.
The alternative way for Trump to be pardoned is for him to resign before the end of his term (most likely in the final hours), and have Pence pardon him. We know it is perfectly legal for a VP to pardon a former president — after all, Ford pardoned Nixon. The wrinkle in Trump’s case would be that the timing and reason for the resignation/pardon would be so obvious as to be a self-evident quid pro quo. Ford went to great pains to assure there was not even an appearance of a deal with respect to Nixon’s pardon, so as to avoid any such questions. So is a pardon obtained under such a conspiracy valid? See the above answer — a case involving such a pardon would almost certainly end up before SCOTUS, so it would be left to them to decide whether the pardon holds up.
- Ability to “Plead the Fifth”
There have been many assertions in the media lately that those accepting pardons by Trump will lose their protection against self-incrimination under the Fifth Amendment, and can therefore be forced to testify against Trump. Sounds pretty sweet. Unfortunately, it’s not that simple. If, lets say, Roger Stone were called to testify against Trump, he could be claim his testimony might tend to incriminate him in cases not covered by the pardon, for example State charges. Would it hold up? It would be very dependent on the case, intended questions, etc. Prosecutors would have options to immunize him to compel testimony — they could do that even without a pardon, but with the pardon in place, granting immunity is more attractive because the prosecution has less to lose. So, bottom line, a pardon could help secure testimony against Trump to a marginal degree, but it’s far from the “gotcha” some have made out.
Given the above, what is it about some of these recent pardons that puts Trump at risk? Ultimately, Trump’s ability to wriggle free of prosecution via pardon will be assessed by the Supreme Court, for the reasons stated above. SCOTUS will need to decide if the nearly absolute presidential pardon power articulated in the Constitution was intended to extend to corruption committed by the president and his conspirators, in which the pardons themselves were part of the conspiracy. Pretty deep and unprecedented stuff! Hard to say how any Supreme Court would decide, much less the current Trump appointee packed court. But I think it’s safe to say it will hinge in large part upon the degree to which indefensible corruption is involved. At some point, even the most Trump leaning court is bound to say “OK, no way is this what the Founding Fathers intended”. The recent anti-Trump election related decisions show that SCOTUS has it in them to make such a ruling.
If one accepts the above analysis, the pardons that will be most problematic for Trump are the one’s he is handing out to alleged co-conspirators like Papadopoulos, van der Zwaan, Flynn, Manafort, and Stone, in which the pardons themselves could be seen as quid pro quo in furtherance of obstruction. The pardons make the grantees somewhat more likely to testify against Trump — but more importantly, each one of the suspect pardons tips the scales further and further towards Trump’s collective use of them being viewed as extra-constitutional thuggery that contradicts the Founders’ intent, rather than merely an extreme exercise of presidential prerogative.
So as we all grit our teeth over each horrific Trump pardon drop during the next month, take solace in the potential that some of the pardons he shovels out may end up as exhibits in his well deserved criminal prosecution.