Pardon My Family, and While We’re at It, Pardon Me

Chris Albert for CBS News

Let me tell you why I don’t believe this White House when it says it isn’t talking about pardons for Donald Trump’s family and for Trump himself.

First of all, it’s just what any good lawyer would wonder aloud about and ask someone to research. It doesn’t mean it’s a tactic that they’re going for, or that it’s a plan, or even something they would actually do. It’s just that when you were just six months into a four-year term and you’ve had this many people from this family telling that many lies, as a matter of just late-night-over-a-couple-of-beers curiosity, some lawyer or aide would say, ‘hey, what about pardons?’

This is to lawyering what checking exits on a plane is to flying. You fully intend to get off the plane, carry-ons in hand, walk down the jetway, and eventually into the arms of your loved ones by the baggage carousel, but just in case, to cover all your bases, you look to where the exits are, so you know if you might — God forbid — need a different exit strategy.

Given Donald Trump Jr.’s statements about never having met with the Russians, and Jared Kushner’s almost-daily revision of federal forms in which he oops…forgets about hundreds of millions of dollars, you know the odds are good your clients are lying to you. I’m sure lawyers faced the same problem when Bill Clinton said, “I did not have sex with that woman,” he did, and Richard Nixon said, “I am not a crook.” He was.

One of the problems here is that politicians are the world’s worst clients. With a regular defendant, a lawyer, knowing that 99% of them are actually guilty, will say, look, I’ll challenge the evidence, the witnesses and the law. You just shut up. Don’t even tell me whether you did it, because I cannot suborn perjury, so unless you really, honest to God, swear on your mother’s grave, even though you’re accused of shooting her and putting her there, innocent, just don’t say a thing.

Politicians, however, can’t do that. Clinton just sounded silly when he got to the self-satire of the legalistic, it depends on what the meaning of is, is, and Nixon taped himself when he occasionally told the truth. Trump not only can’t shut up, he can’t stop tweeting. He is for Robert Mueller the evidence that just keeps on giving, especially if Trump is eventually charged with obstruction.

Another reason why Trump’s lawyers will talk about pardons is the very reason I wrongly thought Trump would never run. He was in New York and Atlantic City construction. Can you say mob and payoffs?

Of course, there were also the illegal immigrants that helped build Trump Tower, but Atlantic City has long been a dirty town. In 1973, Mayor Richard Jackson admitted he shook down contractors. Robert Glass, the city’s Parks and Airport Supervisor, also pleaded guilty, and Florence Clark, the former purchasing agent, pleaded no defense. Mayor William Somers was convicted of extortion. In 1984, Mayor Michael Matthews was recalled and sent to prison for extortion. Even before he was mayor, Matthews was palling around with mobster Little Nicky Scarfo. Doing business in Atlantic City, at best, meant doing business with some pretty shifty characters. Even honest business people there have done things there that might make them wonder why they even got involved with the place.

Did Trump do anything? I have absolutely no knowledge that he did, but if I even had my trash hauled there, I’m not sure I would want a former FBI director going through my underwear. Genovese-and-Gambino-connected firms ran most of that business in New Jersey for decades.

So have they talked about pardons? The White House says no, but Trump already tweeted that he has the power, so I’m guessing, despite his penchant for just saying stuff, that he at least asked someone or saw someone on Fox and Friends, his go-to source for news, talking about it.

Will he? Anyone predicting anything about this president is playing a fool’s game, but before we get to, can he, let’s look at the consequences.

Back in 1915, President Woodrow Wilson tried to make a reporter testify by offering him a full pardon, thinking that would remove the Fifth Amendment right to not incriminate oneself and force the man to testify. The man, NY Tribune editor George Burdick, turned down the pardon, in part because he said that would be confessing he had committed a crime, which he felt he had not.

The court ruled that indeed, taking a pardon was like a confession. Let me quote the decision:

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance, a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Now to be clear, though acceptance of a pardon may be akin to a confession, it would not allow you to be charged with the federal crime you were pardoned for. However, there is the danger it might help build a case if you also violated any state laws. The presidential pardon would not cover that, so while it might get Trump and family off the hook on Federal charges, if there were state tax or other laws that were violated that came up as part of the investigation, they’d be on their own.

We’re getting ahead of ourselves, but Gerald Ford said that one reason he thought the pardon of Richard Nixon was okay was that he had read the Burdick decision and felt Nixon’s acceptance of the pardon was as good as an admission of criminal guilt. That is how Ford lived with the deal.

But let’s go back to can he do this. As far as pardoning family and friends, yes he can. It might give enough Republicans the ammunition they need to start impeachment against Trump, in hopes he’d quit and get the more reliably-right-wing Pence in the Oval, but still, he could do it.

Can he pardon himself? It’s a question we don’t know the answer to because few ever considered anyone would be low enough to try it, but in the game of presidential limbo, we are clearly in a new and lower-than-ever territory. Well, actually not totally. Al Haig did, in fact, suggest it to Nixon, but even Nixon thought that was a really stupid idea, and resigned.

Sean Illing at Vox asked 15 legal scholars for their take on it. It’s one of those questions you never expect there would ever be a need to be asked, but as the ancient curse predicted, we live in interesting times.

Some indicated it would not be something the president could do, because that’s why the Founders put impeachment in the Constitution, which is the same argument that is used for not being able to charge a president with a crime at all until he is out of office. That argument goes: impeachment always comes first, criminal charges only after the president is a citizen again, but even that is not settled law. It’s never gone to the Supreme Court and back when he was a special prosecutor — and before he had to resign his job at Baylor University in a sports sex scandal — Ken Starr prepared a paper arguing you darn well could charge a President with a crime before impeachment.

I think he’s probably right. The same impeachment clause that goes for the President goes for federal judges, and they are charged and even convicted of crimes before being impeached. This is good news and bad news for Trump. Bad news: maybe he can be charged with a crime while in office. Good news: that would also mean it could be he could also pardon himself.

Now that might keep Trump out of prison if indeed he has committed a federal crime, which we don’t know he has at this point. However, it would not keep him in the White House. The one break on pardons in the Constitution is if the president is impeached and convicted by the Senate, he cannot pardon himself out of that. If convicted by the Senate, he’s toast, and remember, impeachment does not have to be for a criminal action in the usual sense of the word. That won’t put him behind bars, but it puts him out of the Oval Office.

Miriam Baer, at Brooklyn Law School, found this Nixon-Era nugget from the Department of Justice Office of Legal Counsel: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Well, OK. I’ll give that a definite maybe, but in fact, what would probably happen is, if the President pardoned himself, and there were charges to be brought against him, the charges would be brought and then it would be up to the Supreme Court to figure this out. How will that go?

I have no idea. There might be the usual liberal-conservative split, but I still have no idea what Justice Kennedy would say, or Chief Justice Roberts, who is fully conservative, but also very cognizant of how he will be seen in history, and self-pardoning may not be one he’ll want to own in the history books.

But who knows if this will ever get that far, and who knows who would be on the court a year or two years from now. One thing I do know: if another Justice is nominated, guess what question will be asked at the hearings for the first time to wonderment of all.


Subscribe to Gil Gross’ daily podcast The Gross National Podcast here:

https://itunes.apple.com/us/podcast/the-gross-national-podcast-with-gil-gross/id1212496651?mt=2

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