What If Trump Pardons Himself?
There’s a great essay on the topic of presidential pardons in the current issue of The Atlantic. Written by historian Tim Naftali, it explores the range of potential pardons that Richard Nixon explored. Happily, in a constitutional sense, Nixon did not abuse that power for his own benefit. (From the perspective of the Trump years, Ford’s pardon of Nixon now looks like a quaint courtesy from one president to his predecessor.)
As Trump winds down his time in office, he is ramping up his pardons of cronies and fellow conspirators. He looks to be on a trajectory to give pardons to family members and more cult followers (that’s Rudy Giuliani in case you are wondering). As he works through his list, and checking it twice, he’s likely to arrive at the recipient of a pardon that he loves the most — himself.
Would this be an abuse of power? Objectively, yes. Giving yourself a legal advantage because of the power of your office is by definition a conflict of interest and a corrosive abuse of power. There are good reasons that we talk about positions of power as offices of public trust. We endow our office holders with powers we do not individually possess — the power to levy fines, the power to incarcerate, and even the power to legally kill. We may, and do, disagree on the use of these powers, but they are enshrined in our governing frameworks and rules of conduct as the legal levers of governance. While these powers, enumerated and not, grant great power to individuals, they should not allow the person to abuse them for personal gain or profit. The reasons are legal, social, and ethical.
Speaking of Trump, however, the terms legal, social, and ethical have little if any meaning to him. He lives in a transactional universe where he is the bright spot in the center — source of all power and legitimacy. He clearly believes that as president he can do anything. When considering the power of presidential pardon, he may be right.
So, what if he does pardon himself? Yes, it’s an abuse of power. Yes, it also corrodes our sense of at least striving for objective justice. Finally, it would be the final division between the haves (both in power and wealth) and the have-nots.
But is there an upside?
One of the thoughts probably vexing the incoming Biden Administration and Congressional Democrats is what to do about Trump once he leaves office. Investigating him for the various crimes he is accused of committing (from tax evasion to violating campaign finance laws to obstructing justice, just to provide a sampler) would look like political retribution. Yet, if Trump pardons himself, he’s no longer on the hook for any federal crimes. (Yes, there are state offenses, but that’s not the federales concern.) Trump would be immune from prosecution by the Biden Administration. His self-granted immunity would not limit any future investigation to either look at remaining co-conspirators and — more importantly — set the record straight for the future.
Just because Trump may escape formal justice, we the American people still deserve to know the truth about the Trump years. We should be demanding a full accounting of his crimes and criminal co-conspirators to re-assert the notion of justice and reestablish the idea that there are public rights and wrongs. Corruption without the disinfection of sunlight festers. We need a thorough investigation of what just happened while the participants are still around, especially those who have received pardons and have no reason not to tell the truth.
The trauma that Trump has inflicted on our Republic requires us to look at the past four years clearly while we can still subpoena the documents and witnesses.
