Over the weekend, after hearing a lot of discussion about Trump being pardoned, I began thinking more closely about the subject, and a thought occurred to me -- Trump getting a pardon is a lot more problematic for him than is generally being discussed, on several levels.
The starting point is something that is generally accepted: that accepting a presidential pardon only protects a person from federal charges, not state indictments. And as we know, there are already investigations of Trump by the New York state Attorney General and New York City D.A. But there's more at risk for Trump when it comes to him getting a pardon. There are three ways that Trump could receive a presidential pardon. The first is that he pardons himself. The huge risk for Trump here, though, is that it's not known whether this is legal or not. In fact, many legal experts and constitutional scholars who I've heard say that there's precedence against it being legal, based on the long-held, indeed historic legal principle that a person cannot be a judge of himself. So, if Trump does decide to go the "self-pardon" route, he is risking his legal protection on a very thin thread. If courts up to the Supreme Court don't allow it (even with Trump's appointees on the bench), then he's out of office without a presidential pardon. (And to those who think, oh, the Trump Supreme Court will always rule to protect him -- keep in mind that the Justices would know that letting a president pardon himself would be precedent-setting for all future presidents. And what that precedent would be is that a president could do pretty much anything when in office, indeed regularly commit any federal crime, and then pardon himself. I'm not so sure I'd want to rely on the Supreme Court voting in my favor over setting such a precedent if I was in Trump's position.) The second way Trump could get a presidential pardon is if he resigned right before leaving office with the agreement that Mike Pence would pardon him. This may be the safest bet for Trump -- but it comes with another huge problem for him. He would have to resign from the presidency. And I'm not sure if the ability to do that is in his emotional makeup. As we've seen, being a "loser" is perhaps the worst thing a person could be, and Trump would have to actively make the decision to become only the second person in U.S. history along with the disgraced Richard Nixon to quit as president. Yes, he would get his pardon -- but it would come with a shame and embarrassment that would stick with him for the rest of his life, and for the rest of American history. Would Trump accept that reality? It's certainly possible. But knowing that a presidential pardon doesn't cover state crimes and therefore doesn't fully protect him, it's equally possible that the humiliation of resigning wouldn't be worth it. I don't know. I only know that, again, a pardon this way comes with its own risk. That leaves the third way Trump could receive a presidential pardon -- and that's if President Joe Biden pardons him. There is precedent for that, of course, when Gerald Ford pardoned Richard Nixon. And Joe Biden does have the same depth of decency as Ford who did want to put the country through seeing a former president on trial with the possibility of jail. But -- Nixon and Ford were from the same party, Trump and Biden are not. More importantly, the crimes that Trump seems on the edge of being accused of are far more substantial towards the protection of the Union than were Nixon's. Trump also pushed the nation towards fascism and the destruction of democracy. He spent a year smearing Biden personally and trying falsely to make literally a federal cause of Biden's son being a criminal. Trump also smeared soldiers as "losers," something that has galled Joe Biden on general principle, but also personally since his other son, now deceased, served in the military. Moreover, Trump has been impeached by the House of Representatives. And as added factor, Biden knows how vilified Gerald Ford was for pardoning Nixon. The point is that relying on Joe Biden's huge decency to pardon him is yet another major risk for Trump. So, while there are three ways Trump could get a presidential pardon, all three come with a significant risk and uncertainty. And added to that significant risk, as mentioned, is that even if he does get his presidential pardon from one of those three sources, it doesn't protect him from being indicted by a state court or charged in local city courts, let alone sued in civil court. But there's even two other downsides Trump would face with getting a presidential pardon. The first of these is that accepting a pardon is the legal equivalent of pleading guilty. Now, to most people, that would probably be worth the trade-off of getting a pardon. But this is Trump, and as we've noted, being considered a "loser" is the worst thing for a person. Moreover, we pretty much never have seen him admit flat-out that he was wrong about anything or take responsibility for his actions. Admitting guilt by accepting a pardon would be a personal torment. He may likely take it despite that, but it would probably tear him up inside, Being Trump, he would probably block out that it's an admission of guilt -- but it's an admission of guilt. The second downside is that if a person accepts a pardon, you can have no Fifth Amendment jeopardy, and therefore you are required by law to testify openly, fully and honestly in court, even about your own actions, if you are ever subpoenaed as a witness. Now, one thing we can be pretty sure of -- there will be a lot of Trump-related criminal cases and lawsuits that will come after Trump leaves office. And being Trump, it is reasonable to assume that Trump will be called to testify. That means, under oath, he will have to admit to crimes and other malfeasances he committed. He might not be able to be prosecuted for any of them because of his pardon, but it will be on the sworn record, which would be devastating to any of his future plans. And if he lies about his actions while under oath, and that can be proven by other testimony and evidence, then even with a pardon he could be tried for obstruction of justice. And here's the thing about that last "if" -- Trump is a pathological liar. He has lied over 20,000 documented times, according to the Washington Post. It's not a matter of "if Trump lies under oath," it's a question of whether Trump would be unable not to lie under oath. The point here is not whether Trump will get a presidential pardon, or if such a pardon would impact his life after he leaves the White House. The issue is that as much of a panacea as getting a presidential pardon would appear to be for Trump, it all comes with huge risks and problems, even if he gets and accepts a pardon. It is what it is.
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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