In this installment of “Get To Know Your Government”, I’m going to talk about something that’s been in the news recently, and is floating around like the Boogey Man.
The Presidential Pardon.
There’s a lot of confusion floating around about what it does and doesn’t do, and what it can or can’t be used for. Hopefully, this article can answer some questions.
A HISTORICAL PERSPECTIVE
The Presidential Pardon is a power granted by the Constitution of the United States to the country’s Chief Executive, the President. Not much is laid out in the Constitution itself, but Alexander Hamilton described the Pardon Power in the Federalist Papers #74 as a means of mercy, based on the power of kings to grant mercy as a last resort. The pardon power can be used at any time EXCEPT IN THE CASE OF IMPEACHMENT. George Washington pardoned two of the leaders of the Whiskey Rebellion instead of hanging them.
WHAT DOES A PARDON DO
A pardon forgives the crime committed, and removes any criminal penalties of the said crime, for the crimes and/or time period specified in the pardon.
A pardon can only be issued by the executive of a jurisdiction, like a President or Governor.
WHAT A PARDON DOESN’T DO
A pardon is not a “Get out of jail, free!” card. Accepting a pardon is an admission of guilt, per Burdick vs. United States.
A pardon does not eliminate civil liability. If someone were pardoned for committing a murder, the family of the victim can come after them in civil court, but could also use that persons acceptance of the pardon as evidence in the civil trial.
A pardon can only be applied to specific crimes listed, not to other crimes committed by the person. Using the murder example, if it turns up that they also littered as well, they could face penalties for that. Not the murder, just the littering.
A pardon can only be applied to criminal charges inside of a specific jurisdiction. Charges for the same or similar crimes can still be brought by an individual state if they were pardoned in federal court, and vice versa.
A pardon doesn’t protect someone from self-incrimination. Since accepting a pardon is an admission of guilt, and the person cannot be tried for the crime they committed, the person receiving the pardon cannot claim to protect themselves from self-incrimination since they’ve already admitted guilt. In other words, they waive their Fifth Amendment rights.
HOW DOES THIS PLAY OUT?
Now, we’ve come to the question of the day. Can Donald Trump pardon himself and his co-conspirators?
Short answer: No.
As I’ve described in Lateral Movement, Nixon already asked if he could pardon himself. This brief describes what his legal team determined. Short version, a President cannot pardon themselves nor their co-conspirators, as doing so would put them above the law.
Is there a case on this which answered the question? No. We are in uncharted territory. Courts don’t rule on hypothetical cases. The idea that a President would not only be so corrupt that they would commit multiple crimes, but that they might try to pardon themselves was unthinkable by the Founding Fathers. They anticipated some corruption, but this level was unfathomable. There was no need to codify the pardon powers then because they didn’t think it would be needed. Sort of like the warning on a bottle of Windex that says “Do not spray directly into eyes.”
Let’s assume for a moment that Donald Trump’s legal strategy consists of pardoning himself and his co-conspirators. First, if it’s involved with an Impeachment, no can do. A presidential pardon cannot be used in cases of Impeachment. There are some fine hairs that need to be split, but the two main questions are at what point does Impeachment begin, and are all crimes in an impeachment non-pardonable, or just the Impeachment process of removing a person from office?
Here’s my prediction. And by mine, I stole part of this from @AltScalesofJustice. Things are going to come to a head. Criminal indictments will be served to Trump’s staff, family, and President Donald Trump. Donald Trump will pardon himself. Maybe his family, but definitely himself. This pardon will immediately be challenged in the Supreme Court. In a unanimous decision, (Maybe 8-1 or 7-2 at the weakest, but the SCOTUS would want to make a statement with this) the Supreme Court would rule that no one, especially the President of the United States, is above the law. By attempting to pardon himself, Donald Trump attempts to circumvent Due Process, and place himself and his co-conspirators in an extra-judicial position. The SCOTUS puts a restriction on the pardon power, Trump tries to fire back at the SCOTUS, and Trump is then removed from office.
WHAT IF THE PARDON SURVIVES SCOTUS REVIEW?
So, let’s assume for a moment that the SCOTUS rules 5-4 that the President can pardon themselves. What then?
In that case, Donnie’s fucked 8 ways from Sunday.
If he leaves out one co-conspirator, they’ll turn on him faster than a fidget spinner. They will turn states evidence for whatever state indicts him first, second, third, fourth, and fifth.
Next, he’ll get impeached and removed from office as fast as the Senate can move.
Once he’s removed from office, here come the State Indictments. He pardoned himself of Federal charges, not State charges. New York will own his ass. Literally. Enterprise Corruption is the state statute of RICO.
While he’s facing hell from at least 39 states (all of the ones that had their voting systems hacked on his orders), the Feds will come at his with a Civil RICO charge. Using his pardon as evidence against him, the government will seize his assets. All of them.
It gets worse for Donnie. Remember all of those crimes he pardoned himself for? He can be subpoenaed to testify in court about each and every one of those, and what he did, who he worked with, and why. And he can’t refuse an answer, since he has no rights to avoid self-incrimination.
So, in short, instead of dying in Leavenworth, penniless and infirm, he’ll die in Riker’s Island, or in Chino, or in any other prison, penniless and infirm.
On that happy ending, I’ll finish this article.