Many of President Trump’s associates are relying on a pardon to avoid prison. Due to the nature of their crimes, a back-up plan might be in order.
Special Counsel Mueller, the Senate Intelligence Committee and the U.S. Attorney for the Southern District of New York have shown that President Trump and his associates committed crimes to advance his 2016 presidential campaign and that, once in office, Trump committed crimes to prevent their disclosure. As a result, President Trump’s associates are in a position to disclose incriminating and discrediting information about him.
This explains why Mueller’s report summarizes evidence that President Trump obstructed justice by dangling pardons to his associates so they covered-up this information. Even Attorney General William Barr has conceded that the President’s exchange of a pardon for such purpose would be a crime.
With Trump’s pre-incarceration commutation of the prison sentence of his associate Roger Stone, convicted of seven felonies to obstruct federal investigations into links between the Trump campaign and Russia and his pardon of his former national security advisor Michael Flynn, who refused to cooperate with the special counsel’s investigation into those links, and who was convicted of lying about his contacts with the Russian ambassador to the U.S., Trump now is performing his part of the deal.
Trump undoubtedly will continue to criminally pardon his associates in coming weeks. Earlier this year the Republican controlled Senate Intelligence Committee referred, among other senior Trump associates, Trump’s son, Donald Trump Jr., his son-in-law and senior adviser, Jared Kushner, and his 2016 campaign strategist, Steve Bannon, to the Department of Justice for criminal investigation for misleading the committee about links between the 2016 Trump presidential campaign and agents for Russia. Trump’s personal lawyer, former U.S. Attorney Rudi Giuliani, very likely committed bribery and/or a type of extortion when he attempted to coerce Ukraine’s President into announcing a criminal investigation of Joe Biden to advance Trump’s 2020 presidential campaign. Trump was impeached for his direct attempt at the same. More recently, a U.S. District Court judge found that Postmaster General, Louis DeJoy, a major Trump backer and Trump appointee slowed the delivery of mail, and thereby mail-in ballots (predominantly Democratic), for the purpose of “voter disenfranchisement” — an objective Trump publicly supported. This too is a crime. It is unimaginable these fine men risked prison to advance Trump’s interests without assurance of a pardon.
Given Trump’s ongoing efforts to void the results of the 2020 election, it is likely he is enlisting other fine men and perhaps fine women, while dangling pardons, to criminally advance those efforts — perhaps by obstructing voting in the electoral college or through martial law, as the recently pardoned Flynn is urging.
These offenses, however, may not be pardonable. While it often is asserted that, with the exception of cases of impeachment, the Constitution imposes no limits on the President’s pardon power, that is not entirely correct. In 1915 in Burdick v. United States the U.S. Supreme Court, noting the need to balance competing constitutional provisions, held a pardon invalid, because it conflicted with the exercise of a constitutional right.
Scholars recently have identified another another apparent constitutional limitation on the president’s pardon power in the Harvard Law Review and other law journals. In addition to granting powers to the President, the Constitution mandates that the President swear an oath to “take care that the laws be faithfully executed.” Few acts could more thoroughly violate that duty than the president’s criminal use of the pardon power to induce others to commit crimes to enable him to unlawfully retain that office and/or avoid criminal prosecution. Of course, that is precisely what has occurred with Trump’s dangling pardons to Misters Stone and Flynn and almost certainly will be shown to have been the case with others.
While the U.S. Supreme Court currently leans towards an expansive view of presidential power, it would not necessarily validate these extraordinary pardons. For example, earlier this year, in Trump v. Vance, six of the justices now on the court (Justice Barrett was not yet on the Court) ruled against Trump’s contention that as President, he was substantially immune from the subpoena of his personal records in a state criminal proceeding.
Regardless of what the courts decide, it is nearly certain the extravagant venality of these pardons will render them extremely unpopular — Trump would have issued them sooner were it otherwise. That they likely will be accompanied by disclosure of further discrediting matter about Trump, maybe about his use of the office to enrich himself and/or his subservience to the Russian mafia, could make them politically toxic.
In that case the nullification of the pardons (and of any such pardons by future presidents) through constitutional amendment could become a possibility. While Democrats, even if they were unified, lack the large majorities in Congress and state legislatures required for a constitutional amendment, many Republicans may find it expedient to support such an amendment. Notoriously subservient to Trump, that Republican subservience is contingent on his political capital exceeding that of countervailing forces. On several prior occasions, that balance briefly shifted against Trump. The small but growing number of Republicans breaking with Trump over his efforts to disregard the 2020 presidential election suggests that balance may be shifting once again, and perhaps for a longer time.
Biden’s inauguration could advance that shift further, since it will end Trump’s dominance of the mass media with his conspiratorial non-sense in favor of more fact based narratives — such as of Trump’s responsibility for the explosion of covid in the final months of his presidency. If the political winds shift enough, supporting a constitutional amendment invalidating Trump’s corrupt pardons might allow Republicans to distance themselves from him, while remaining loyal to core Republican values of enriching the wealthy and assaulting the constitutional rights of women and oppressed minorities.
Of course, nullification of Trump’s pardons certainly is not likely. Neither was his election in 2016.