Who knows what will have transpired between this writing (Friday morning) and publishing (Monday morning) but I feel compelled to discuss some interesting possibilities nonetheless. Let’s explore.
Thursday evening the Washington Post broke the not that surprising story that Donald Trump and his legal team were exploring the use of presidential pardons as a possible part of their strategy in Russiagate. I looked into this matter months ago as I tried to anticipate what might happen. The reality is that there are many unanswered questions when it comes to the scope of presidential pardons.
Despite all the “Nothing burger” and “Fake news” claims from Trump and company their actions belie their rhetoric for anyone who is objectively paying attention. In a recent interview Trump did with the New York Times he effectively warned Robert Mueller not to look into his family’s financial history. That was like a drug dealer telling the police they may check his car except for the glove box. I think he just told the police where the drugs are hidden, how about you? As time goes on the mantra “Follow the money” gains credibility.
If Trump and company were innocent why would they be looking at pardons and ways to “shoot the messenger”? I am among the many that smelled a rat when Trump refused to release his tax returns during the campaign; a practice started by Richard Nixon. Isn’t it ironic that Trump can’t even reach the credibility level of Nixon?
To my understanding a person must be at least indicted before a President can pardon them; (more about this aspect below.) This presents several problems. The first instance that I would use to refute my assertion in this paragraph’s sentence is Gerald Ford’s pardon of Richard Nixon. Ford pardoned Nixon for any crimes committed or that may have been committed as President. I am among the few liberals who agreed with Ford’s actions. The nation was reeling from Watergate and badly needed to move on. To my knowledge Ford’s “preemptive” pardon was never challenged in the courts and therefore we don’t know if it would survive a constitutional challenge. Ford and Nixon are dead so it doesn’t matter to them personally, but nonetheless it is still an unresolved legal matter.
There is also the unresolved matter of whether a sitting President can be indicted. That is also a constitutional issue that would probably have to go to the Supreme Court for resolution. I’m not betting how the current Court would rule; let alone one with another Trump appointee. (That’s fodder for a bunch of new articles!)
It is reasonable to assume that if Trump went the pardon route he would want to pardon staff and family members. Although the Constitution doesn’t address either of these categories specifically, I think Trump would be on much firmer legal ground in pardoning people in either or both of those categories. Why would family or staff be different than anyone else? Again, the issue of indictments is involved and in my mind a separate issue.
Remember in 1915 (Burdick v United States) the Supreme Court ruled that acceptance of a pardon constitutes an admission of guilt. That may be one of the few ways we can get Trump and company to actually admit (although via the “side door”) that they did anything illegal. To muddy the waters a bit more, that same ruling appears to imply that the pardon power is not limited to convicted or even indicted persons. (Does the admission of guilt by accepting the pardon supersede an indictment/conviction “requirement”?) What is crystal clear in this ruling is that rejecting a pardon preserves an individual’s Fifth Amendment rights. If this strategy is utilized, timing will be of paramount importance.
Watergate, while somewhat similar, isn’t identical to where I think Russiagate is heading. Nixon didn’t commit any crimes prior to taking office that entered into the Watergate matter. If my (and many other’s) inklings of international money laundering are proven correct Trump committed serious crimes prior to taking office that were perhaps peripherally related to the campaign and cover-up. A presidential pardon only applies to federal crimes. Would state Attorney(s) General also agree to a pardon(s)? This is getting very complex!
I’ve talked a lot about courts and rulings. As it was with Watergate the court of public opinion might be the most important. The public might be willing to exchange “blanket immunity” for Trump’s exit taking his crew with him.
It is indeed an interesting time in which we live!
Note: I gave a lot of legal opinions here however I did not go to law school and am not an attorney.
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