Donald Trump loves the full-throated autocracy of his pardon power. He has used it before and will undoubtedly use it again. However, it is one thing to pardon Michael Flynn for crimes he has admitted to committing. It is quite another to pre-emptively pardon his friends, his family and himself. Here’s the risk to him.
Pardoning his friends like Giuliani and his family like Javanka before they have been accused of doing anything wrong basically is admitting to a crime having been committed. Why else give anyone a pardon? I understand that Gerald Ford pardoned Nixon before he was indicted, but Nixon was an unindicted co-conspirator and clearly had committed crimes despite not having been formally charged at the time of his pardon. Many believe that the Nixon pardon might have cost Ford the 1976 election.
In Trump’s case, he has to make a tough call. Does he try to insulate himself, his associates and his family from future federal indictments while he still can, or does he take a chance that no one in the in-coming Biden Administration will be vindictive as undoubtedly he would be. That’s how he thinks. He assumes others would do what he would do and try to get even. The risk is that if Trump really wants to run again in 2024, he can’t be seen as having excused the crimes of his associates and his family should The New York Times nail down that they all are guilty of something.
My guess is that President-elect Biden and his team will have more important things to attend to than whether or not the Trumps committed crimes although some state prosecutors might go after Trump especially in New York. But a presidential self-pardon would not protect the Trumps from state charges, only federal ones. I really don’t see Biden’s Justice Department giving Trump any more free PR by prosecuting him.
As far as whether or not, President Trump can pardon himself, this is a point that is definitely up for debate. I doubt the question will be answered UNLESS Mr. Trump is charged and the pardon he gave himself is challenged in the courts. No matter what any lower court does, I suspect this Supreme Court would allow the self-pardon because there is nothing that precludes it in the Constitution and that power is surely implied in the pardon power. But again, a long, drawn out debate about the legitimacy of a self-pardon would cripple any attempt by Trump to recapture the White House.
If Trump decides to retire to Mar-A-Lago and play golf for the rest of his days, he can pardon anyone he wants. But, if he is sincere about trying to make a comeback after he leaves office, he has to be very careful about appearing to be too cavalier about abusing his power and forgiving obvious criminals. Essentially, if Rudy and the Trump kids committed no crimes, why give them pardons? If they did, and Trump pardons them, and the crimes are unearthed, he can kiss his comeback good-bye.
The Donald has a tough call. Am I guilty or do I just look like I am? And will the Democrats come after me?
My guess is that Trump has more to fear from the state attorneys in New York than from the Biden Justice Department. That Justice Department has to reposition itself away from being the President’s lawyers and back to working for the American people.
And by the way, if Trump does start a pardon spree, he might want to include Bill Barr. And, if as has been rumored, there was a plot to sell pardons, well then all bets are off and the new Attorney General may have hers or his hands full. Stay tuned. This will only be answered before January 20 and even then the resulting chips will just begin to fall.