With President Trump’s refusal to admit defeat dwindling in significance, he is poised to move on to his next act guaranteed to outrage: wholesale pardons.
For Trump this could be treacherous territory. If he wants to reclaim the White House in 2024, every pardon for his family, administration, allies and even himself (which he may or may not be able to do) presents a risk to his comeback. Yet, the legal risks are too great for Trump not to issue a passel of pardons. The question is how far does he go and what are the real risks.
If there is one thing that can be agreed about the Trump administration, it’s that it was a sloppy affair. Full of public and private infighting and leakier than the Titanic, Trump’s government was hardly detail oriented and full of people who seemed to go out of their way to work at cross-purposes. Combine that with a president who is impulsive and used to getting his own way, and you have the recipe for legal trouble.
Setting aside the more wild rumors of payoffs for pardons and the Russia conspiracy that has proven to be anything from less that it was promoted to be to a complete sham, it’s a short trip from cutting corners to committing felonies. Relatively minor offenses (deleting e-mails or violating procedural rules) can become much more serious if two people discuss and proceed to commit the offense (conspiracy), attempt to cover it up (obstruction) and lie about it (perjury).
And that leads to the first conundrum facing Trump: Who to pardon?
Given the slipshod and inattentive management style of the Trump White House, it is doubtful any single person or small group really knows what has been going on for the past four years. Trump himself is given to impetuous acts and demands. Who knows what the president has demanded of different staffers at any given time. The number of people caught up in corner-cutting — or possibly worse — could be quite large indeed.
This presents two problems. The first is that Trump would need to issue wholesale pardons to dozens of staffers to cover all potential bases — an act that would not sit well with the public. It’s one thing for Trump to claim that he needs to protect his family from a Democratic witch hunt; it’s another thing entirely to give everyone and their uncle a get-out-of-jail-free card.
The alternate problem for Trump is not pardoning enough people and leaving bitter aides in the Justice Department’s firing line. Anyone on the hook for transgressions is a prime candidate to cop a plea and give evidence against Trump (if it exists). Prosecutors always go for the big fish, so sweet deals are in the offing, provided that the testimony is good enough. That leaves everyone in the clear except Trump — an ironic state of affairs.
Trump may or may not be able to pardon himself. Opinion is split, and the question has never been litigated. Conceivably he could declare himself temporarily unfit and let Mike Pence take over just long enough for Pence to pardon him — but that seems a bit tinfoil hat-ish — and would require Trump to declare he is mentally unfit, a bridge I doubt he would ever willingly cross, no matter the rewards.
Trump will probably pardon himself and dare the Biden Justice Department to come after him. Ironically, a self-pardon would be the very act to enrage Democratic activists (and many rank-and-file) — beyond the ability of Biden and Harris to stop the resulting investigation.
Could investigating Trump benefit Trump?
All the pardon talk is predicated on Trump and his associates having committed criminal acts. The media and pundits need to consider the possibility that they have not — or, even worse, just ticky-tack fouls that are part and parcel of being president.
Biden and the Democrats would be wise to keep in mind Bill Clinton’s impeachment and pardons escapades.
The Clinton impeachment flopped with the public because it was seen as the culmination of an overzealous prosecution over matter(s) that had little to do with public policy or national security — despite the fact that Clinton did commit perjury. Not to mention that Clinton did pardon a family member (his half-brother), a business associate over a land deal in which he may have been involved, and the wealthy commodities trader Marc Rich, whose ex-wife later wrote the Clinton Library a fat check (she lobbied strongly for the pardon).
If the Biden Justice Department is going to conduct a full-bore investigation of Trump and his administration — and the pressure from the left to do so will likely be overwhelming — DOJ better get the investigation right. Any slip-up or appearance of a political hatchet job would be disastrous for Biden. After the Russia flop, a failed DOJ probe would be political gold for Trump in 2024.
Keith Naughton, Ph.D. is co-founder of Silent Majority Strategies, a public and regulatory affairs consulting firm. Dr. Naughton is a former Pennsylvania political campaign consultant. Follow him on Twitter @KNaughton711.