By Jerri-Lynn Scofield* – Naked Capitalism
With the countdown to January 20, 2021 proceeding apace, we’ve reached one of the seamier windows familiar to veteran observers of U.S. politics.
Who will Trump pardon?
Aside from whether he might pardon himself – an issue that would break new legal ground, but not particularly novel or interesting territory – the moves Trump seems to be considering are not any more sleazy than those Bill Clinton, for example, has already taken.
Much recent press paints Trump’s pardon machinations as somehow unique and beyond the pale. Other than the self-pardon issue – exhumation of which I suggest is attractive to the same type of intellect who thinks that you should not, I repeat NOT have voted for yourself for student council president back in junior high school.
He’s almost certain to act to protect various loyalists and hangers on – Rudy Giuliani, anyone? – there is also the wild card possibility that he might do the right thing and pardon Julian Assange.
A couple of points, the U.S. Constitution’s pardon power, at least for federal offenses – is virtually absolute. Permit me to quote from a 2016 post, Pardon Power: The Obamamometer’s Options
The United States Constitution says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
So allow me to summarize the salient points.
Absolute Power Can Neither Be Reviewed nor Overturned As a Matter of Law
The President’s pardoning power is absolute. Pardoning decisions are not subject to judicial review, nor can any individual pardon be overturned by an act of Congress. The pardoning power’s also unlimited as to offenses against the United States, so in theory, at least as a matter of law, a President could pardon someone for committing any offense against the United States (I leave to one side the question of whether such an action would be politically possible). A President could also, at least in theory, pardon him- or herself for anything except in cases of impeachment.
No Indictment Necessary
It’s not necessary for someone to be charged or convicted of a crime against of the United States for the President to pardon that person. The most famous example of a President granting a pardon in a case where no indictment had been brought is President Gerald Ford’s September 1974 pardon of Richard Nixon shortly after he resigned the office of President….
Now that self pardon seems fully on the table, a recent post by Jonathan Turley, spells out some key controversies.
Before summarizing some of Turley’s post, I note that I expect Trump to roll the dice and assume he can pardon himself – knowing that the decision as to whether he’s right will probably be made by judges he saw successfully confirmed. One of Trump’s greatest successes was reshaping membership of the Federal courts, from the three Supreme Court Justices he confirmed, down through numerous federal and circuit court judges he saw seated.
Over to Turley:
While I have long maintained (before the Trump Administration) that a president can self-pardon, I have always said that this is a question with good-faith arguments on both sides….
The Washington Post appears to have dispensed with any notion of balance in running repeated and often redundant columns against self-pardons with little discussion of the opposing views. It has now added this column on an interpretations that is demonstrably at odds with the history, language, and purpose of presidential pardons. It does not matter. It is anti-Trump and thus there is a sense of Trumpunity from the obligations of accuracy or balance, a long-standing problem at the Post. It reminds me of the past argument by Harvard Professor Noah Feldman (who testified with me at the impeachment hearing) that President Trump was not really impeached after he was impeachment. That argument was at least based on a specific (if unsupported) technical claim of procedural completeness. This is simply an argument based on a type of “extraordinary times demand extraordinary interpretations.” The meaning of the pardon clause does not change by sheer will or whim.
Jerri-Lynn here. Nor might Biden wish to do so. I point out that Trump relied more strongly on the involvement of family members in his administration, perhaps to a greater extent than any administration since JFK’s. Given the continued widespread hostility to Trump, his supporters, and his family, I wouldn’t be surprised to see pro forma pardons for both Jared and Ivanka – although I should mention that a well-placed observer of my acquaintance says these won’t actually be forthcoming – as the potential charges that these family members face are state law claims, and these couldn’t be eliminated by any federal pardons.
I’m not so sure. Any pardon would no doubt complicate any legal investigation into activities undertaken by Trump and his family. So I would think pardons for all would be prudent.
And once that precedent is established. Biden might in future also choose to do for his problematic son Hunter. Who knows, Trump’s pattern of closing down federal legal liability for his family may become the new norm.
Ludicrous Unpardon Argument
Now that Trump Derangement Syndrome (TDS) is on the verge of passing into the historical ether as an active malady, I find myself concentrating on just how badly it distorted the writing and arguments of many who should have known better.
With respect to pardons, a textbook example of TDS in practice, with respect to Trump’s pardon power, is the ludicrous claim Turley debunks that if Trump pardons himself, Biden should just unpardon him.
According to Turley:
Recently, however, experts have brought the same claims of clarity on this question to assure the public that the argument for self-pardons is “incoherent and incompatible” with the Constitution. Ken Gormley, president of Duquesne University, is one of those who supported impeachment and rejected any basis for self-pardons. He has now however gone one better and claimed that Joe Biden can “unpardon” Trump if he does grant himself a self-pardon.
In the ultimate understatement, Gormley writes that unpardoning someone “might sound strange, even extra-constitutional.” It certainly does. Indeed, it sounds entirely absurd. Gormley admits that “[c]ertainly, there’s nothing in the words of the Constitution or in historical precedent that speaks of undoing a self-pardon.” However, he insists that is is “because there’s nothing that authorizes a self-pardon in the first place.”
I will not repeat the basis for self-pardons in prior writings (here and here and here and here). However, even those who disagree with the basis for self-pardons have not gone as far as Gormley in claiming the right to unpardon predecessors.
Is there any precedent for a Presidential unpardon power?
But that doesn’t mean someone with a rampant case of TDS cannot just create some new unpardon doctrine that purports to limit Trump in his exercise of his legitimate exercise of well-settled presidential pardoning powers.
This latest salvo against Trump is unique and beyond the pale. Other than the self-pardon issue, exhumation of which I suggest is attractive to the same type of intellect who thinks that you should not, I repeat NOT have voted for yourself for student council president back in Junior High school.
Will a self-pardon now become par for the course for future exiting Presidents? Perhaps.
Clintons and Pardons
To set a benchmark for the worst Trump could come up with as he issues the standard raft of end-of-Presidency pardons on his way to his last journey on Marine One, allow me a brief walk down memory lane to remind readers of one Bill Clinton’s highlights in sleaze: the Marc Rich pardon. It would be hard to top the standard set by the Clintons there.
Ex-wife, New York socialite and campaign fundraiser Denise Rich managed to secure a pardon for the fugitive financier from Clinton.
She denied that any money changed hands.
Sure. I believe her totally. Why should I not?
What I remember at the time was the strong, persistent rumors from well-connected contacts that more than money changed hands.
Leave it to Bill that money wasn’t quite sleazy enough – but that there also had to be a bedroom angle.
Rich also denied she had an affair with Bill in this Irish Times account, Denise Rich denies Clinton’s pardon bought:
Wealthy Democratic Party donor Denise Rich, in her first interviews since former President Bill Clinton’s pardon of her ex-husband, Marc Rich, insisted the pardon was not bought and said she supported it under pressure from their daughters.
“That’s not at all what it was about,” Ms Rich said in the 20/20 interview to be broadcast today.”I wanted to support the president, and I wanted to support my country.” Ms Rich also denied tabloid reports suggesting that she and Mr Clinton had an affair.
“I never had a sexual relationship or anything else that’s improper,” she said. “Any kind of relationship that would be improper with President Clinton.” In both interviews, Ms. Rich, 57, admitted that her contributions to the Democratic Party, including former First Lady Hillary Rodham Clinton’s campaign for a US Senate seat from New York, had bought her access to the White House.
The office of the US Attorney for Manhattan, Mary Jo White, is examining whether Marc Rich, 66, bought his pardon with political donations and gifts that Denise Rich gave Mr Clinton, the Democratic Party and Senator Hillary Clinton.
Vanity Fair traces Rich’s dealings in North Korea, Russia, Yugoslavia, Romania, Bulgaria, Jamaica, Venezuela and South Africa, when anti-apartheid sanctions were in force.
“The smoking gun is greed,” Ken Hill, the US Marshall who hunted Mr Rich around the world for 14 years, told Vanity Fair. This is what Marc thrived on – the greed of those who had commodities and were in positions of influence and power. December 22, 2020
*Jerri-Lynn Scofield, has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.