Mass Distraction

As the clock ticks down to the final few hours before the end of the Trump administration, ​I’ve been thinking about the concerns discussed that he might mass pardon the insurrectionist mob.

My first thought is that I don’t think he’d do it.  He doesn’t care for these people at all, whether or not they go to jail.  The only reason for him to pardon any of them is it to say “Screw you” to the rest of the country.  And while that's always a possible motivation for Trump, I’m not sure if that’s enough motivation for him.  Especially since I suspect he’s been told it would guarantee the Senate would convict him in the Impeachment trial.

My second thought is about what if he does sign a mass pardon.  And while I don’t dismiss the possibility, I also don’t think it’s the total disaster it’s been presented as.  Yes, it would be absolutely horrible – but it doesn’t come without some truly massive problems for Trump.

First, there’s the issue of what he would pardon them for.  My guess it would be something specific, like for forming a mob and breaking into the U.S. Capitol and sedition.  Or whatever specifics he wants.  But I just don’t see him a total blanket order that pardons everybody for everything that they ever did leading up to January 6 that would be related to planning a trip to Washington D.C. that day.  Because that's how all-encompassing a mass blanket pardon would have to be to make sure it covers any federal crime of conspiracy for anyone who was there.  And so, if that means he instead makes a mass pardon for much more specific crimes, then there are a great many other federal crimes not covered by such a more-focused pardon I’m sure people could be charged with.  Not being a lawyer, I can’t name them all, but one that comes to mind is felony murder – where not just the killer, but also his accomplices or co-conspirators are charged with murder.  I’ve heard many legal experts bring this up, saying that everyone in the mob could conceivably be considered an accomplice making the murder of Officer Brian Sicknick possible.  And I don’t believe even Trump would include “committing felony murder” in his pardon.  Or include destruction of property in a federal building -- not just because I don’t think Trump would be that specific in a pardon, but especially since he brought his faux-outrage at defacing federal property in Black Lives Matter protests.  And I’m sure there are a great many other specific federal crimes that Trump wouldn’t cover in a mass pardon of the seditious mob -- like for another, disorderly conduct on restricted grounds -- given that since he just isn't likely to pardon everybody for everything that they ever did, there will be a lot of cracks to fall through..

Second, as I said, even a more limited, specific pardon for any insurrectionists would likely guarantee Trump's conviction in the Senate impeachment trial.

And third, everyone who got such a mass pardon would lose their Fifth Amendment protections and would required to testify honestly and openly if subpoenaed in any federal court case.  So, all these people pardoned (including the higher ups in the insurrection) who have to testify about who they knew that was involved and the planning and coordination.  And even if some of those crimes would come with pardons, not all would, as I noted.

So, even if it happens that Trump issued a blanket pardon of some sort, it’s not like they all would “get away with it,” I don’t think.  Such a pardon would come with a significant cost and risk.  And that’s all the more reason, among other reasons, why I don’t think Trump will issue one.

But, of course, this is Trump.  So, who knows?