Sunday, June 11, 2017

What If: trump and the Pardon Power

So hey, if it's time for some Game Theory (as Eric Garland would put it), how do we game out this ongoing disaster that is the trump Administration?

Right now, we're in the middle of an ongoing and expanding special counsel investigation into potentially criminal ties between Russia and trump's Presidential campaign.

As it stands now trump himself is "not the target" of the investigation, but so many of his people in his Inner Circle are - Mike Flynn, Paul Manafort, Jared Kushner, and more - that there's every likelihood that trump is tied to at least one felony violation. Given trump's history of questionable business deals, that likelihood jumps higher.

And let's include the Obstruction of Justice situation over trump's firing of FBI Director Comey.

So let's just say the Progressive/Democrat/Sane Person's Fantasy comes true to the last detail: That Robert Mueller's Special Counsel investigations into trump-Russia-Gate prove that trump's campaign actively colluded with Russian spies and hackers to subvert the 2016 Elections (including hacking into electronic voting machines to skew results); that the active collusion not only involves trump but also VP Pence, Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and various other Republican Party leaders and campaign experts in a massive conspiracy (that itself can be a criminal charge); that there were acts of bribery, slush funds, illegal payoffs, and money laundering INVOLVING FOREIGN DONORS (an electoral No-No); that there were acts of extortion involving hacked emails of both Democrats and Republicans; and that trump actively Obstructed the investigations by firing not only Comey but also other government officials such as Sally Yates (who warned the White House that Flynn was compromised).

So there's about five felony charges at the least facing President Loser of the Popular Vote donald trump.

What the hell happens next?

In a sane and just world, Congress would move to Impeach trump (and other high-level officials) to prevent his further abuse of power.

But a Republican-controlled Congress - especially with Ryan and McConnell at the helm - will likely not do so. Even if Ryan and McConnell are dragged off in handcuffs, the remaining majorities in the House and Senate will likely remain Republican. And the Republicans are cowards.

In the meantime, since the investigation would reveal trump's criminal misdeeds, the federal agents authorized to arrest him on those charges - I dunno if it would be the FBI or the US Marshals, what the hell let's make it Gibbs' team from NCIS - are hurrying over to the nearest trump Golf Course to slap the handcuffs on him.

But before Gibbs can get through the door, trump rushes over to a table and fills out official Presidential Pardon papers that he issues to himself regarding those crimes and any others he may have possibly committed beforehand. Essentially giving himself a "Get Out of Jail Free" card (he may include everyone else arrested, but knowing trump he'll likely let most of them hang for "their failure" to serve him).

Can trump even do that? Can ANY President pardon himself?

It's a serious question, and it's come up often during major scandals like Watergate, Iran-Contra, and Whitewater.

It starts off with the question if Presidents can be charged while in office. Given the nature of their duties, there's a likelihood they may violate laws both domestic and foreign - such as war crimes - and if they can be charged on even a minor issue it could prove distracting. However, previous Supreme Court decisions argued that the President is NOT above the law, so if there are felonies involved - especially ones that threaten the Constitutional system - this situation may fall into precedent and trump can get charged.

If we go to Brian Kalt over at Foreign Policy:

I have been writing about presidential self-pardons for years. My position has always been that they would be legally invalid. I have also believed that a self-pardon is unlikely to ever happen because there are too many incentives weighing against it. But I am not sure that applies to Trump, who has proved he has a high tolerance for personal risk and a taste for attempting the never-before attempted.
So what would happen if Trump attempted a self-pardon? First, some pardon fundamentals: Article II, Section 2, Clause 1 of the U.S. Constitution gives the president the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Pardons thus can only cover federal criminal offenses and cannot thwart an impeachment (which technically is not a criminal prosecution anyway)...
...If a court ever did consider the issue, the decision could go either way because there are reasonable arguments on both sides. The president (or ex-president by the time he would be prosecuted) would have a very simple case that his self-pardon was valid: There is nothing in the Constitution that explicitly forbids it.
The prosecutor’s argument, while much more complicated, is a stronger one. First, a textual argument: The word “pardon” means something inherently bilateral, something that a sovereign bestows upon a subject. Consider more colloquially that you can beg someone else’s pardon, but you never seek or receive one from yourself. While there is admittedly no explicit limitation on self-pardons, there is no need for one, because a self-pardon is by definition not a “pardon...” 
...The prosecutor can also appeal to the venerable maxim that no one may be the judge in his own case. If a federal criminal defendant feels unjustly accused, he must convince one of the following to back him: the U.S. attorney (who can drop the prosecution), a majority of the grand jury (which can refuse to indict), the judge (who can dismiss the case), any member of the trial jury (which can fail to unanimously convict), or the president (who can pardon). But people cannot prosecute, judge, or sit on juries in their own cases. Like a judge who would have to submit to the authority of another judge if he were being prosecuted, a president must seek a pardon from his successor...

Again, considering trump, his need for self-preservation would still compel him to attempt a self-pardon, but the damage from that move wouldn't be worth it. Again to Kalt:

Besides these legal arguments against self-pardons, there are also some practical reasons why a president would not want to pardon himself even if he thought he could. The most important is that it would look so craven and corrupt that it would greatly weaken the president’s political position with all but his most die-hard supporters. If he were facing impeachment, it would increase his chances of being removed from office. If there were an election anytime soon, he and his party could pay a tremendous price.

The subsequent election after Nixon's resignation and Ford's pardon of him in September 1974 over Watergate was the 1974 Midterms Election (November). Republicans lost seats in both the Senate and the House, and Ford narrowly lost to Carter in the 1976 Presidential. Political experts agree the pardon ruined the Republicans' chances both times.

If trump does this for himself, he may remain in the White House but he'll be terribly alone. Accepting the pardon is an admission of guilt: It's a "Yeah I did the crime, but I won't do the time" move. No matter how he'll sell it to his base, everyone else on the planet will know him for what he is: A crook, and not a very smart one at that.

No sane person will want to work for him (which is already a problem his administration has), fearing the likelihood of getting caught up in other criminal misdeeds. Meaning an already-understaffed West Wing will get worse, and sloppier, with failures and disasters of mismanaging the state of affairs that would harm the nation even more. There would be at least two years of death, war, and mayhem before a Democratic Congress could challenge trump's destructive ways.

It would be possible for a Republican-controlled Congress to turn on trump if he abuses his office with a self-pardon move. They may fear their own Far Right base but they're not all idiots in Congress: They've seen what happens to the Party associated with scandal (SEE 1974 results) and know if they stick with trump throughout the midterms they will lose every Independent non-wingnut voter out there even in the "safe" gerrymandered districts. Impeaching trump would be the only way to save their skins in November 2018 (if they can last that long).

There's even a slight possibility that if the scandal is seriously bad, enough Republicans in Congress will flip parties - it can happen during the congressional sessions - and give control to the Democrats now, who would gladly Impeach trump even if they still end up with Pence in the Oval Office.

Both those scenarios, however, are pretty weak Ifs. The modern Republican Party is craven, dogmatic, and obsessed with their tax-cut deregulation agenda of doom. Even the "moderates" in the Party won't bolt.

This can well go down to the Supreme Court to determine if a President can self-pardon. That could still take years to reach that level of the legal system, and it still boils down to whether the conservative Republican-backed Justices side with the Constitution or with trump.

We are so royally fucked.

1 comment:

dinthebeast said...

Leave it to president four-year-old to adopt a strategy of legal and constitutional onanism...

-Doug in Oakland