Donald’s Daunting Decisions
With each passing day, Donald Trump’s hopes for retaining the presidency become thinner and thinner. With that realization, his disposition has become increasingly desperate. He has failed to have local election officials and the courts overturn the votes in the five key battleground states and the Electoral College has already voted, awarding Biden a 306 to 232 victory. Only a refusal by the U.S. Congress to accept the Electoral College’s determination at its session on January 6th remains as Trump’s sole hope to retain the presidency for the next four years. He therefore has been trying to line up members of the House and Senate to reject the vote count certified by the Electoral College, but that cannot happen in the House of Representatives and even Mitch McConnell is unlikely to allow it to happen in the Senate. Yes, Trump still has an appeal pending before to the U.S. Supreme Court to overturn three decisions by the Pennsylvania Supreme Court, but the high court is currently in recess and is not scheduled to reconvene until January 8th. Even if the Court were to sooner reconvene, the chances are overwhelming that it would simply dismiss the case because no decision on appeal would alter the outcome of the election.
Retaining the presidency is of critical importance to Trump because it provides him with a major safeguard against federal criminal prosecution as well as investing in him the enormous powers of the presidency. He has already been named (as “Individual No.1”) in the lawsuit that resulted in a three-year jail term for Michael Cohen. Beyond that he’s vulnerable to charges for obstruction of justice in connection with both the Mueller and House impeachment investigations as well as money laundering activities dating back to before he became president. Clearly, the prospect of spending some of his golden years behind bars cannot be an appealing one.
While Trump is powerless to foreclose state criminal proceedings against him, the first issue which he must now confront is whether he should try to do anything to foreclose the institution of federal criminal proceedings. There is, of course, the possibility that the Biden administration will decide not to bring criminal charges against him. Pursuing him in the courts is very low on President-elect Biden’s agenda as I previous explained in my article entitled “What To Do About Donald.” Still, Trump’s actions undermining the oversight efforts of the Congress and the Special Prosecutor inflicted serious damage to the concept of separation of powers embodied in the nation’s Constitution. As a result, the President-elect may not feel comfortable letting them go unpunished. In addition, Biden may not even be able to prevent an independent Department of Justice from pursuing such charges. Since Trump tends to project his own thought processes onto others, weighing heavily in his own mind must be the question of what he would do if his and Biden’s roles were reversed.
Of course, Trump is vested with the power to grant pardons, but presidential pardons do not come without adverse consequences. Trump has to consider what pursuing a pardon would do to his continuing political ambitions. Receiving a presidential pardon carries with it the stigma (as well as an implied admission) that the recipient has committed one or more crimes. Trump, however, has a long history of lying his way out of uncomfortable situations and would undoubtedly claim that he hasn’t done anything wrong, but only sought a pardon because the Democrats are out to get him. Thus, he would contend that his pardon should simply be viewed as an insurance policy to protect him against unjust claims. While his more ardent supporters would clearly be willing to accept such an explanation, mainstream Republicans, and more importantly the leadership of the Republican Party, might consider his pursuit of a pardon too big a stain on his reputation to take another chance on a man who has already derailed the nation’s economy and lost a presidential election by more than seven million votes.
Trump also has to consider the impact of a pardon on his financial position. Then vast majority of his assets were of questionable value even before the coronavirus pandemic took its toll on his commercial real estate and his hospitality businesses. Without the power and prestige of the presidency, it’s doubtful that any of his hotels and his golf and social clubs will be able to operate at a profit. His most recent tax returns, as reported in the New York Times, strongly suggest that the highest value of those properties may be their liquidation value rather than their values as on-going businesses. Before becoming president, the vast majority of his earning came from his ownership and participation on “the Apprentice.” That show has now been discontinued and is not likely to be revived. Also among his assets are his relationships with Russian oligarchs who sought his services in helping them launder their monies outside of Russia. With the Congress poised to look into those connections, it seems unlikely that they will be a continuing source of income for him.
Clearly, Trump’s most valuable asset is his large following among Republican voters, over 60 million of whom receive his daily avalanche of tweets. In less than two months his post-election solicitations will have netted him in excess of $120 million. To a television network, that type of following is an asset of almost immeasurable value. While Trump, who bragged he could shoot someone on Fifth Avenue without repercussion, might believe that his pursuit of a pardon will not impair his relationship with his supporters, he must also consider how it will affect a TV producer who is considering investing big money in a program featuring him and how it will affect the potential sponsors of that program.
Even if Trump concludes that the considerations weigh in favor of pursuing a pardon, he must decide what that pardon is to cover. The easy answer is that it should cover all of his past infractions even though he has never been named in any criminal indictment with the possible exception of the indictment involving illegal campaign contributions in the form of hush-money payments to Stormy Daniels and Karen McDougal. While a blanket prospective pardon was issued to President Nixon, the validity of that pardon was never challenged and there is a question among legal scholars as to whether it would be upheld. By pursing a blanket pardon Trump might be putting himself in a lose-lose situation. He would be incurring the stigma of having sought a pardon without actually receiving the benefit of getting one.
Still, even an unenforceable pardon is not wholly without value. It would certainly increase the probability that no criminal proceeding would be initiated against him. This certainly worked in Nixon’s case as he avoided criminal charges while over 30 members of his administration were prosecuted. Even if a U.S. Attorney were to challenge his blanket pardon, it would still serve as additional legal defense to be litigated that could extend the duration of any criminal proceeding for months, if not years. From Trump’s perspective, this might be sufficient.
Acceptance of a presidential pardon has been held an admission of guilt of the pardoned crime. This is the underpinning of the legal argument that a blanket pardon that does not specify a particular crime is invalid. Thus, if he is uncomfortable with the thought that his pardon might be held invalid, he could cause his pardon to cover specific crimes plus include an omnibus provision covering all other past illegal acts. While this would certainly assure the likelihood that the pardon would be upheld at least for the specified crimes, it also would make it much more difficult for Trump to contend that he has sought his pardon simply out of an abundance of caution.
Another issue which Trump must decide is whether he will simply pardon himself or resign and have Vice President Pence succeed him and grant him a pardon. The former option is extremely risky not only because there is no precedent supporting the validity of a self-pardon, but also because it would open up the possibility that it would place a president above the law. If deemed valid it would create a legal precedent making it possible for a president to commit all varieties of illegal acts and never be held legally accountable. This was a major concern of the drafters of the Constitution which is evidence that the presidential power to grant pardons was never intended to encompass a self-pardon.
While there is a very serious chance that a self-pardon would be deemed a nullity by the courts (including the U.S. Supreme Court with three justices appointed by Trump), having Pence grant him a pardon also has some downside risks. Throughout Trump’s presidency, Vice President Pence has been a loyal lieutenant and has even made some very foolish statements in support of Trump (like “the virus would go away by Memorial Day”). In addition, Pence never missed an opportunity to thank Trump for his leadership. Certainly, the thought of serving as president, even if only for a day or a week, would have significant appeal to Pence because, like Trump, he harbors some aspirations for running for president in 2024. That being the case, can Trump really trust Pence to follow his instructions in granting him a pardon? At the 11th hour Pence could be overcome by patriotic thoughts and decide that it’s important that the nation prosecute Trump to prevent future presidents from acting as Trump has done. Alternatively, Pence could issue a pardon expressly itemizing in excruciating detail all of the illegal actions taken by Trump in an effort to bring Trump’s political career to a halt. While I view both of these possibilities with extreme skepticism, they might not seem so unrealistic to a narcissistic Trump if Pence doesn’t try sufficiently hard on January 6th to cause the Congress to reject the vote submitted by the Electoral College. Pence’s opposition to the proceeding instituted by Louie Gohmert to give the Vice President additional power to reject the findings of the Electoral College will only increase the President’s anxieties about trusting Pence.
President Trump has already begun what is expected to be a long parade of presidential pardons. Already included among his pardon recipients are a number of people who worked in his campaign who were caught up in the Special Counsel’s investigation. In addition, it’s anticipated that others involved in his administration (including members of his immediate family) will be included among the likely pardon recipients. The one thing that is clear is that the President does not follow the long-standing custom of having the Department of Justice select and vet his pardon recipients. Quite the contrary, his pardon decisions are strictly a matter of personal preference and are frequently made to protect those who have protected or otherwise benefitted him. To Trump, pardons are just another form of communications which broadcast the message to everyone within his orbit that he will protect those who protect or benefit him. Not overly subtle, but nevertheless effective. The problem is that this genre of pardons also poses a danger for him.
By pardoning those who conspired with or aided and abetted him in violations of the law, Trump will also strip them of their Fifth Amendment protections. Then, if they are called upon to testify about crimes in which they and Trump have participated, they will have no legal basis for not providing testimony that will incriminate Trump. Should they then give false testimony they can be tried for perjury and Trump will no longer be in a position to protect them. For this reason, Trump has to be careful about to whom he issues a pardon. The flip side of this issue is that if he doesn’t provide those individuals with a pardon, they can be squeezed by a prosecutor into testifying against Trump in an effort to obtain a lighter sentence, perhaps one without any jail time.
All of the decisions discussed above require careful consideration. Unfortunately, Trump generally approaches such issues on the basis of what works for now, thinking he will worry later about resulting problems when and if they arise. This is how the United States came to lead the world in the number of deaths resulting from COVID-19 which should give you a good idea of what he’s likely to do during the next three weeks.