The Self-Pardon Isn’t the Issue

I wrote about this over the weekend but something new occurred to me today on this whole issue of whether or not the president of the United States can pardon himself. On the one hand, it’s simply not true that the president cannot pardon himself. He could do it right now. And then he would have done it.

But this doesn’t necessarily mean a whole lot. After all, it’s generally agreed (although not universally) that a sitting president cannot be prosecuted for a crime and a president certainly has the power to order his own Department of Justice not to prosecute. The immediate remedy for serious criminal misconduct is removal from office through the impeachment process or perhaps the 25th Amendment. Whether Trump pardons himself or not, he’s still subject to those remedies so it wouldn’t inoculate him.

On the other hand, once the president is either termed out, defeated or impeached and convicted, his status reverts back to that of an ordinary United States citizen. And, in that role, the courts regain their power. While they can say they don’t recognize a self-pardon from a sitting president, they can’t really do much about it if the president is willing to order the Justice Department to follow his lead. They have no way of compelling the prosecution of a president who insists on not being prosecuted. Ultimately, they’d have to rely on Congress to step into the breach in the rule of law. But if the courts refuse to recognize the legality of a self-pardon, then private-citizen Trump would have no protection.

In other words, Trump gets no real benefit from a self-pardon while he’s still president. And once he’s no longer president, he has no assurance that a self-pardon would be of any use either.

The important question, then, is whether Trump would make the effort at all considering it would create a giant backlash without any guarantee of a corresponding benefit.  Senate Judiciary Committee Chairman Charles Grassley just commented on this issue, saying, “If I were President of the United States and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer.”

That’s his way of saying that he would not have the president’s back if he were to pardon himself, which is another way of saying that Trump would be setting himself up to potentially lose an impeachment trial in the Senate. Of course, the issue would have come before the Senate for Grassley to have any say on the matter, and the House Republicans are much more reliable allies to the president than the Senate Republicans. Still, it seems like a self-pardon would be a truly irrational decision unless made on the way out the door in the desperate hope that it would hold up and prevent an otherwise inevitable prison term.

The self-pardon is obviously the extreme case here. Trump could also issue pardons to people like Paul Manafort and Michael Flynn, and do so for purely and transparently corrupt purposes. It could be a bit tougher to unwind those pardons, and the courts might rule that a self-pardon goes too far but that there is otherwise no remedy for a corrupt pardon.

Even here, though, the utility of these kinds of pardons is questionable. Michael Flynn could get out of his plea deal with his accompanying obligation to cooperate with the Special Counsel, but he’s already been cooperating for quite some time. He’d also lose his right to avoid self-incrimination and could be compelled to testify anyway. Paul Manafort is still fighting his charges, so it would definitely not be to the president’s advantage to take away his Fifth Amendment rights.

Finally, the pardon power only extends to federal crimes, and there’s little question that people like Michael Cohen and Rick Gates have committed crimes that could be prosecuted in state courts. Trump can’t really protect them.

This is all a long of way of saying that the pardon issue isn’t among our more pressing concerns, even if the president and his advisers’ attitude about the issue is concerning. It indicates that this administration has no respect for either the spirit or the rule of law and will contemplate anything, no matter how corrupt, to avoid accountability.

And Trump can still do a lot to impede this investigation, and do so without necessarily crossing Chuck Grassley’s red line.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.