It’s only a matter of time before we wake up one morning and open our newspapers—or web browsers, for you newfangled, tech-savvy youngsters—to read that Donald Trump has pardoned himself.
I’m not saying it will work. But I’m saying he will try.
Trump has been openly inquiring about pardoning himself as far back as 2017. Having apparently skipped high school civics, he infamously claimed that Article II of the Constitution gives him “the right to do whatever I want.” And in June of 2018, in the midst of the Russia probe, he addressed the issue in public, tweeting: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself.”
Yes, and numerous hockey experts have stated that I am the NHL’s all-time leading goal scorer. After all, I’ve asserted it, so it must be true. (Most famous: my triple hat trick in a 9-0 shutout of Toe Blake and the Habs in 1942.)
So it’s not like this idea appeared out of nowhere this week. We’ve all known for sometime that Trump intends to use every lever at his disposal to insulate himself from legal reckoning for his crimes, even a lever that most legal scholars believe is unconstitutional.
The much feared prosecutor Andrew Weissmann, one of Robert Mueller’s top lieutenants in the Russiagate probe, put it very simply in explaining why he is certain that Trump will try to pardon himself, to wit:
What does he have to lose? Even if the courts reject the attempt, as they are likely to do, Donald will only be back where he is now, and no worse off. Why not try?
True true. And with all due respect to Mr. Weissmann, the only reason I have not wholeheartedly agreed—until now—is that there is a far more foolproof alternative that will achieve the same result.
In lieu of a risky self-pardon, why wouldn’t Trump take the easy layup—switching to a basketball metaphor now—which is to say, resign, presumably at the eleventh hour, so that Pence can pardon him. A self-pardon, after all, would certainly be challenged and is likely to be overturned by the courts, even a Trump-heavy Supreme Court. A pardon by President-for-a-Day Pence, on the other hand, shameless and outrageous though it would be, would surely succeed.
So if Trump is really worried about his post-presidency criminal liability—and he should be—why not go for the sure thing?
I’ll tell you why: because he is an unhinged sociopathic narcissist. And if there was ever any doubt about that, his actions over the past few weeks have obliterated that doubt forever.
I BEG YOUR PARDON, I THINK I’LL DO IT IN THE ROSE GARDEN
It’s not a matter of chutzpah. We have long known there is no bottom to how low Donald Trump will go, on any matter you care to name. But until now I thought he might be more pragmatic Now I realize his sheer craziness vastly outweighs any sense of strategy.
First there were Trump’s attempts to get Congressional Republicans, state officials, and the courts to disregard the will of the voters and award him the election on no grounds whatsoever. This was a scenario that even the Transition Integrity Project did not contemplate, and it contemplated civil war.
Then there was his recent willingness to openly muse about declaring martial law.
Then there was his absolute silence on a Russian cyberattack/espionage operation that informed sources are calling the worse intelligence failure in American history. (Which is saying something. Move over Pearl Harbor and 9/11.)
And of course there has been his outrageous-even-for-him inaction as the pandemic rages, and worse, his willful attempts to creates obstacles for the incoming administration’s ability to deal with it.
In the remaining 24 days before he runs out of the White House with the Presidential silver stuffed into his pants, I am sure he will do even more things that will boggle the mind.
But when it comes to shielding himself from the long arm of the law, it was this latest round of pardons (46 over the course of just 48 hours between December 22nd and 23rd, or about a pardon an hour with two lunch breaks),that convinced me that Weissmann is right. From almost the beginning, the bitter irony of Trump’s vow to “drain the swamp“ of Washington corruption has been baldly apparent. But this raft of pardons is a new low, excusing some of the most corrupt public figures in contemporary American life, almost all of them rewards for his toadies or allies (which with Trump, is the same thing).
After watching this display, I will be shocked if Trump doesn’t pardon himself.
Although publicly Trump has always been able to rationalize away even the worst defeats, I suspect that privately they eat him alive. Even as he maddeningly seems to get away with every fucking thing, note that he never casually shrugs these things off like a guy who is truly unbothered. Instead, he lashes out while simultaneously seeming to internalize the fake narrative. Witness his reaction to being defeated by Joe Biden.
That is why he clearly does not want to resign and have that stain as part of his legacy. Coupled with his aforementioned sky-high estimation of what he thinks he can get away with—in other words, what he thinks he deserves—it becomes clear that when it comes to shielding himself from legal accountability, he will go for the thing no sane person believes a president is entitled to do.
Recall also that Trump has repeatedly proven to be his own worst enemy, from the Comey firing to the release of the Zelinskyy letter to complaining to a campaign crowd in Erie, PA that he had to come to Erie, PA. Even now, when you think he’d be trying (unjustifiably) to take credit for the COVID-19 vaccine(s), he is unaccountably passing on that opportunity because he is so invested in his claim that the coronavirus is kinda of a hoax, or at least overblown.
In short, Trump is so arrogant, so entitled, so irrationally enamored of his own powers that I am sure he thinks he can get away with a self-pardon. You can understand why he feels that way, having gotten away scot free with the most incredible crimes thought his whole obscenely privileged life with almost no consequences except karmic ones.
He might be right, though I doubt it. But I no longer doubt that he will try.
I DIDN’T GET NOTHING; I HAD TO PAY $25 AND PICK UP THE GARBAGE
Warning: Mansplaining ahead.
Typically a pardon is meant to redress a miscarriage of justice in which an individual has been unfairly punished, or punished out of proportion to his or her crime, or so manifestly paid their debt to society or otherwise rehabilitated him or herself that they are deserving of clemency. By contrast, the people Trump has pardoned during his presidency are the exact opposite of that, a rogues gallery of unrepentant felons who are the very last people deserving of mercy.
This should not comes as a shock to any but the willfully naïve. In the words of Michael Allen Gillespie, professor of political science and philosophy at Duke, “The inevitable result of giving a criminal the power to pardon is that he pardons the members of his criminal conspiracy.”
So whom did Trump pardon in this latest one-two punch? A bunch of corrupt Republican politicians. A cop who needlessly sicced her police dog on defenseless immigrants. The odious duo of Roger Stone and Paul Manafort, the former for witness tampering, obstruction, and lying to federal prosecutors, the latter for tax and bank fraud, witness tampering, and conspiracy to defraud the United States. His son-in-law’s father, for making illegal campaign contributions, tax evasion, and witness tampering. (Chris Christie was the US Attorney who put him behind bars. Hey Chris, how does that feel, on top of Trump giving you COVID?)
And there’s more. The four Blackwater contractors he pardoned were responsible for murdering 17 Iraqi civilians in cold blood, including a nine-year-old boy, in Baghdad’s Nisour Square in 2007. That particular pardon is obviously a favor to Blackwater founder Erik Prince, the billionaire Christian supremacist and war profiteer who has been at the center of several of Trump’s secret foreign policy crimes, and who may be in need of a pardon himself for lying to Congress. (PS Prince is also Betsy DeVos’s brother. And if you don’t know, now you know.)
Speaking to the Washington Post, Russell Riley, a presidential historian at the University of Virginia’s Miller Center, noted: “Nobody with a straight face can argue that this use of the pardon power is consistent with what the Framers envisioned when they conveyed it in Article II.”
This on top of previous pardons for the likes of Mike Flynn for lying to the FBI, US military personnel convicted and accused of war crimes in Iraq and Afghanistan, right wing troll Dinesh D’Souza for a campaign finance felony, former NYPD commissioner Bernard Kerik for tax fraud, batshit anti-immigrant Maricopa County (Arizona) sheriff Joe Arpaio for everything under the sun.
(Meanwhile the United States has the highest per capita rate of incarceration in the world, disproportionately people of color, with millions of legitimate applications for pardon in which the Trump administration has no interest, unless Kim Kardashian calls.)
Accordingly, there have already been calls for Congress to constrain or even eliminate the presidential power to pardon. That may be a good idea, or not. But as with all the functions of government, it will be impossible to completely legislate our way to a foolproof system impervious to abuse by men of ill will who manage to gain power. Limitations on the awesome power of the presidency as designed by the Framers will always depend in some part on the goodwill of the person occupying that office. And history will record that no one has occupied it with more ill will and bad faith than Donald J. Trump.
MANSPLAINING, PART DEUX
It goes without saying that a “self-pardon” is a contradiction in terms. But the irrationality of the idea will be no deterrent whatsoever to Trump trying it.
Likewise, we all know that a presidential pardon would only inoculate Trump against federal charges. Meanwhile, Letitia James, the New York State Attorney General, and Cy Vance, the Manhattan DA, are waiting with a raft of state and local charges that could put Don behind bars for the rest of his natural life. (More on that in a future post.)
But if he does in fact take a flyer on this insane idea, we will again see the hypocrisy of the so-called “originalists” among the ranks of American conservatives. In addition to mere common sense, a proper historical reading of the term “pardon” as used in the 18th century definitively rules out the idea that it’s something a president could confer upon himself. I think Roberts, Kagan, Sotomayor, and Breyer will agree, and I think (THINK) Kavanaugh and Gorsuch will too. ACB is a tossup, I think. (THINK.) But if it comes down to this game of chicken, look for Alito, Thomas, and the rest of the Federalist Society to suddenly find a way to disavow their own judicial north star—at least when it comes to a Republican POTUS. (Democratic Presidents need not apply.)
Trump is clearly making hay while the sun shines, knowing that his power will drop precipitously at noon on January 20. He is rewarding toadies, protecting cronies, and trying to undo the legacy of the Russia probe……which he can try all the live long day, but ironically, will only have the bet effect of further cementing his place as the worst and most corrupt US president ever.
Though the pundits keep insisting that his influence over the GOP will endure, already we see the Trump mystique deflating, as his own party for the first time is about defy him by overriding a veto, in this case, his Confederacy-defending attack on the defense appropriations bill. (Admittedly, the mere circumstances for a veto, or overriding one, have rarely come up, given the way McConnell has blocked any and all legislation.) Meanwhile Trump continues to stick his thumb in the GOP’s eye by blowing up a hard-won COVID relief bill, while threatening that he’s keeping track of who’s been naughty and nice to him.
And we all know that this latest slate of pardons is really a warmup for the big ones to come. Pardons for Ivanka and Jared and Don Jr and Eric all go without saying. Surely on that list too is Steve Bannon, who is already under indictment, and Rudy Giuliani, who soon will be. And as with Nixon there will be no requirement for an overt admission of guilt, even though the acceptance of a pardon by definition implies one. Trump and his family and his cronies will take the pardons while at the same time insisting they did nothing wrong….the polar opposite of a principled, innocent man sitting in prison who refuses a pardon because of that inherent admission of guilt.
Accordingly, you would think that a self-pardon is the sort of thing that might at long last make Trump’s Kool-Aid drunk supporters acknowledge his stunning criminality. But of course they won’t. We all know that MAGA Nation is completely impervious to reason, stuck in its Bizarro World alternate reality were day is night, good is bad, ignorance is wisdom, and freedom is slavery. Therefore they will nationalize it like they rationalize everything he’s ever done, crying that “He had to do it, to protect himself from the vindictive Democrats!”
This with a guy who claimed only the guilty have to take the Fifth Amendment. As an admission of irredeemable guilt, a self-pardon makes taking the Fifth look laughable.
It will be the perfect punctuation point at the end of this kakistocratic administration.
I am not really in the business of making predictions. It’s true that this past October I had a post called “The Impending Arrest of Joe Biden,” but that was not a serious prediction so much as an attempt to provoke discussion about just how far Trump would go to steal the election. (Though it wouldn’t have shocked me if Don had tried it.)
This forecast of a self-pardon, however, is a legitimate attempt at prophecy.
Of course, maybe a pardon won’t be necessary. Maybe Trump will yet again pull a rabbit out of the hat and manage to stay in office. We will soon learn more details of who was behind the Nashville Christmas bombing—nice callback to Nixon, btw—but let’s start an office pool: how long before Trump uses it as a Reichstag fire to invoke the Insurrection Act or even martial law, or at least advance his musings about it?
In the mean time, let us stop to ponder how we can to be the country we are, with domestic terrorism on the rise, a pandemic whose death total is approaching that of our casualties in World War II, and a president who occupies himself golfing, trying to subvert a fair election, and pardoning his cronies. And likely himself.