They’re not making any moral argument to him, I think. What good would it do to tell him that a self-pardon would be one of the most disgraceful things a U.S. president had ever done, an eventuality so comically corrupt that the Framers didn’t think to address it?
I mean, you’ve got to go a long, long way in abusing executive power for Bill Barr and Pat Cipollone to get squeamish about it.
They’re not making a moral argument to him, they’re making a legal argument. Believe it or not, there actually is a case to be made that Trump will be *less* likely to be prosecuted if he *doesn’t* pardon himself.
I think he’s going to do it anyway. You can’t tell him that he might have the power to grant himself impunity from all federal criminal statutes and not expect him to use it.
White House counsel Pat Cipollone and former Attorney General Bill Barr have warned President Donald Trump that they do not believe he should pardon himself, multiple sources familiar with the matter tell CNN. Barr conveyed this position to Trump before resigning last month.
— Shimon Prokupecz (@ShimonPro) January 11, 2021
Why would a self-pardon be a bad idea legally? Because: Public outrage over it, especially among Democrats, would be so intense that Biden and Merrick Garland would come under pressure to challenge its validity. And the only way they can do that is — ta da — for the DOJ to charge Trump with a crime. They can’t go to the Supreme Court and ask for an advisory opinion about whether a self-pardon is constitutional. The Court doesn’t do that. A litigant needs standing, an actual case or controversy.
To challenge the pardon’s constitutionality, Team Joe would need to indict him. The pardon would become the equivalent of Trump waving a red cape in front of a bull. How confident is he that Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, if forced to take sides on this question, will side with him?
”You have a number of them [on the Court] who are self-professed originalists, so they ought to be looking at what the framers intended by the pardon power,” [law professor Jennifer] Rodgers said. “That leads toward saying a self-pardon is not within a president’s power.”
Still, the president may ultimately conclude that the possible benefits of a self-pardon outweigh the risks. The legal battle over the validity of the pardon would prolong any prosecution, giving him time to build a stronger defense and sapping the government’s resources.
“He would still have a benefit if it was not successful,” said Andrew Weissmann, one of the top prosecutors on Mueller’s team. “It would delay the process quite some time.”
True, the big constitutional battle over whether self-pardons are valid would sidetrack a prosecution for a good long while. But, as the quoted article goes on to note, it might also antagonize Democratic state AGs into filing any state charges they might be considering against him. Public opposition to the idea of him placing himself above federal law would pressure state officials into demonstrating that he’s not above state law, at least. And even if SCOTUS upheld the self-pardon, immunizing him from prosecution for federal crimes, that immunity would also take away Trump’s privilege against self-incrimination when testifying under oath. House Democrats could haul him in to answer questions and he’d have to either comply or try to duck them by claiming executive privilege, which would itself be litigated.
Benjamin Wittes tries to game out how SCOTUS would react to this case, bearing in mind that the Biden DOJ isn’t going to charge Trump with anything unless they think their case is exceptionally strong. You don’t do something explosive like indict a former president if you’re not very, very sure that you’re going to win.
A self-pardon would create still another awkwardness. The Supreme Court has suggested that accepting a pardon implies admitting the pardoned crime. And while some debate exists about the extent to which this is true, it is certainly the case that granting a pardon strongly implies that the president believes there is some crime that requires forgiveness. Gerald Ford would not have needed to pardon Richard Nixon had the latter not committed crimes, just as no previous or subsequent president needed to pardon his predecessor. Being both the grantee and the recipient of a pardon accentuates the guilt of the individual. Trump would effectively be announcing that he has engaged in acts that might expose him to criminal prosecution (thus alleging his own guilt); by then accepting the pardon, he would thus, to some degree, be admitting his own allegation. In pleading the pardon to the court, in other words, he would be boasting of his guilt.
So put yourself in the shoes of whomever you imagine the swing justices to be in facing such a case. They would confront a former president credibly accused of horrible things. He offers no defense, but rather asserts the claim that he can unilaterally nix an investigation or a prosecution by taking a position that defies the historic position of the branch he headed. Both the Department of Justice and the current president would be taking the opposite view. To grant him dismissal would allow every future president to negate every future criminal investigation of himself, and to give himself a get-out-of-jail-free card upon his exit from office.
Ruling in Trump’s favor would be all but unthinkable considering how future presidents would abuse the precedent. They could commit any federal crime they wished while in office, then pardon themselves on January 20 and be off scot-free. That may be what Barr and Cipollone told Trump: There is no earthly way this pardon will be upheld. So Trump will invite a ton of public scorn by issuing it to himself, and in the end all for naught.
I will say, though, that I’m skeptical that Garland will look to charge Trump with something just because he’s effectively dared Biden’s DOJ to do it by pardoning himself. “This is a 6-3 conservative Court,” Garland might tell himself. “They believe strongly in executive power. It’s unlikely that they’ll side with Trump, but not impossible. Why not let the matter lie, with the constitutionality of the pardon uncertain, and let some future more liberal Court decide the issue if and when another president tries to pardon himself?” I think Team Joe is reluctant to go after Trump, knowing how difficult a prosecution would make it for congressional Republicans to work with them. They’ll do it if the evidence requires it, I think, but they won’t do it just to force a fight over the pardon. Trump is unlikely to be prosecuted no matter what he does pardon-wise.
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