With a stroke of her pen Speaker Pelosi made it official. Donald Trump has been impeached for a second time, with the charges boiled down to election interference (specifically in Georgia and “lordy there are tapes!”) and inciting insurrection by encouraging a mob of thousands spoiling for a riot to storm the United States Capitol and stop the counting and official acceptance/certification of the Electoral Votes. There are additional details but that’s the gist of it as I see it.
With that in mind consider the following:
I’m not a lawyer, much less one with experience in Constitutional law but I’m pretty sure it’s widely accepted that when when it comes to federal crimes, a President’s powers to pardon individuals is almost without limit. Note the word almost because there is a qualification when it comes to impeachment. Overall though the language on the matter in Article II, Section 2 is straightforward in the last phrase of the first paragraph of Section 2:
“and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
That leaves me with some questions:
1) Since he’s been Impeached for at least potential federal crimes, isn’t Trump proscribed not only from pardoning himself, but that any pardon from Pence on at least charges related to election interference (Georgia) or the insurrection at the Capitol also invalid?
2) Since his evil spawn from his first marriage (not sure if Tiffany might have gotten into all this) helped whip up the masses in the months since the election, helped (via social media and sometimes at rallies) called on people to show up on the 6th and “stop the steal” (and various other language to encourage them) and even took part in that awful rally that preceded the assault on the Capitol and Congress be potentially charged can Trump pardon them? Same applies for Rudy, Meadows, Congress Critters who helped whip up the crowd and of course anyone who entered the Capitol illegally that day.
3) Regarding legal technicalities, does there need to already be an open investigation into whether Trump has committed federal crimes related to this second Impeachment to make an pardon invalid? We know the U.S Attorney is going full speed to get investigations underway and arrests made, regardless of any “Hey — don’t do that” interference coming down from whatever lackey’s Trump still has at DOJ. If they are even still at work it more likely they are busy trying to cover up other stuff, and trying to cover their own butts in the process. But the point is that perhaps if it hasn’t already happened the U.S. Attorney in DC needs to have a subordinate open a formal investigation of possible crimes committed by Trump for election interference and the assault on the Capitol. Just to cover all the bases.
Maybe I’m wrong, but now that a formal Article of Impeachment has been passed the “except in cases of Impeachment” part of Article II, Section 2 seems to be particularly relevant at the moment. For Trump at least, it seems to me not even following Barr’s (and other’s) advice and foregoing the self-pardon because odds were it wouldn’t hold up under legal challenge and instead having Pence pardon him wouldn’t do any good. Not at least as far as one part (Georgia wasn’t the only state) of his election interference is concerned, and not for a range of crimes he could be on the hook for related to the insurrection he called for and on that very day incited. Yes, I know any actual criminal proceeding will hang on the whole “intent” thing and that’s a tough nut for a prosecutor to crack, but Trump won’t be facing a jury out there in some ruby red state. No, he’ll have people who will listen to the evidence, the instructions from the judge and apply their own common sense to what they hear during the trial. If someone has reminded Trump of why he had to pardon Manafort in the first place (that juror who was an ardent Trumpkin but said she had to do her duty as a citizen and a juror as dictated by law) Trump seems to have good reason to be worried.
I’ve watched lawyers on TV discuss how strong a criminal case in criminal court might be, as proving intent is always tough and that would come into play. However, this is Impeachment and different standards apply. “High Crimes and Misdemeanors means pretty much whatever Congress says it does and abuse of power (this certainly qualifies) is reason enough to Impeach and convict a President if Congress decides the abuse is serious enough. One would think spending months spreading lies and stoking up the nutjobs AND the disturbing number of domestic terrorists that have been out there waiting for exactly the moment Trump created to cut loose, calling on them to come to DC the day the Electoral Votes would be opened and counted, inciting them (along with others) to go to the Capitol and fight and even (although he was of course lying) saying he’d walk down Pennsylvania Avenue with them would be enough abuse of his power to finish him. But sadly we are talking about the Trump and the Republican Party he swallowed whole like the last big bite of a “beautiful” chocolate cake.
In any case, Trump is now officially under the equivalent of an indictment. There WILL be a trial because the Constitution Trump tried and failed to (completely at least) destroy mandates that the Senate put him on trial as soon as the Article of Impeachment is formally presented to them. Current Majority Leader McConnell has decided that golly gee, even though there’s this these things called airplanes he just can’t convene the Senate before it’s currently scheduled to meet again and the Senate trial will have to wait until after the Inauguration.
Speaking of McConnell putting the trial off until after the Inauguration here’s a really fun question to ponder. Since he won’t be tried in the Senate before his term expires next week Trump can’t be convicted and out of Office as soon as the Chief Justice’s gavel comes down after the verdict. But, that ALSO means he can’t be acquitted either! There may or may not be enough Senators willing to step up and get us to a two-thirds majority for conviction, but in a way for the purposes of this piece it doesn’t matter.
From where I sit Trump is in Impeachment purgatory, and perhaps his ability to issue pardons is stuck in there with him! At least for any crimes covered by the new Article of Impeachment. Could it be that without meaning to McConnell neutered Trump’s pardon powers and opened him up to federal criminal prosecution even if he (Trump) gets pardoned by Pence on a bunch of other stuff? If you like that one, here’s another fun one to think about. What if McConnell intended to put the screws to Trump by ensuring no pardon for at least his recent crimes could be issued, or at least would hold up? That seems like something McConnell, who has to be furious over Trump costing him his power as Majority Leader would do! It would mean, as suggested in the title picked Trump is having “I’m screwed” thoughts, only Pence isn’t the only one that could do the screwing.
There have been some awfully sleazy, even outrageous pardons in our history and more than I care to think of in my lifetime. With Trump it’s a safe bet these days (and until noon on January 20) to assume upon hearing he issued a pardon(s) that most people will experience a mixture of disgust and outrage upon learning who received undeserved “mercy” from Trump. We also know from plenty of credible reporting that he was likely to issue a boatload of outrage inducing pardons on the way out the door, including possibly one to himself. However as I noted no less that Billirubin Barr advised him that doing so was a tossup and might backfire. Barr, got through to Trump and at least temporarily convinced him that safe and sure thing would be to resign at the last second and have Pence pardon him instead to ensure it would hold up. Word is that WH Counsel Pat “please can I somehow get out of here with my career prospects intact” Cippilone emerged from apparent Witness Protection hiding to offer the same advice.
Pence seems to be overlooking Trump trying (or was at least ok with) to get him and his family killed by an insurrectionist mob (with it seems some special teams embedded within it) since he won’t invoke the 25th one wonders if Pence would have an epiphany. That he’d realize he will NEVER be the GOP candidate in 2024 and that his career is over and lie to Trump — by promising to pardon him and then when Trump hands over his resignation say “Nope. You tried to kill me. After all I’ve done for you!” I don’t see that happening though. Pence would play the dutiful lackey to the end and issue the pardon.
That assumes of course Trump could bring himself to trust that even at literally the last minute his resignation would immediately be followed by a Pence pardon. As I just suggested, Trump has only himself to blame for having to think that after all the shit he made Pence eat that Pence, even if only on “Mother’s” explicit order might actually screw him back. I think Trump will be desperate enough to risk it, even though for any crimes related to the actions that lead to Impeachment 2.0 (or 20.20 if you will) no pardon would be valid. Trump will take what he can get though and demand a pardon for everything else.
For all that, there’s still the question in the title about that trainload of pardons we’ve all suspected would be coming before Trump is out the door. Sure, he was distracted during the holidays getting things ready for his big moment on the 6th to get himself installed as President for life. So there weren’t as many appalling pardons recently as I expected. Still, I remained braced for what was surely coming and since you’re reading this I’m betting you have felt the same. However, when his big plan, hope or whatever failed last week and worse (for him) a lot of people in positions of power and influence actually said critical things about him and started openly DEFYING him (loss of multiple social media site’s access, most parts of the Murdoch media empire telling him not only “it’s over” but to STFU and go away quietly as in right now/today, and worst of all corporate cronies that donated big bucks to him and the GOP taking a public hike Trump is finally realizing all those legal problems he’s kept at bay are about to hit him in the face. Hard.
He already had big problems at the state level and now he realizes that he might not get support from very many in the GOP (who need that corporate money) if federal charges are filed. Mr. “Art of the Deal” is probably (and hating himself more than usual for doing so) realizing that HE might need to cut a deal to minimize his own legal exposure. He’s not all that smart (never was) but he’s had a decent gift for media savvy and promoting himself. He also is confronting the possibility he’s lost his touch, at least some and even if not he’s in trouble without social media to have direct access outside hardcore right wing sites that don’t reach the masses. And if Murdoch hasn’t explicitly told him to forget about continued fluffing on Fox, that even THAT would be at least cut back he’s in deep shit. The LAST thing he needs is the bad PR for issuing a rash of despicable, deplorable pardons to despicable, deplorable people.
So many promises made. So many he can break if he thinks doing so can suit his best interests. Hell, since this is Trump we are talking about he might figure screwing over a whole bunch of idiots who were fools to believe his promises about pardon might be one of the final pleasures he can wring out of his time in Office! The anguished calls from people crying out “but you promised” will be music to his ears. And he will think of the Snake poem and song, how he suckered the MAGAts with it (they never realized HE was the freaking snake) and smile some more.
Is that too much to hope for? That a whole bunch of pardons that should never have been issued in the first place won’t in fact happen because Trump wants to avoid aggravating prosecutors who are already fighting for first crack at giving him a legal colonoscopy? Maybe, just maybe not.
Well, this (as often happens) is longer than I intended but I assure you it was much longer when I wrote the first draft. I hope it provokes some thought, discussion and provides answers to the questions I posed from real lawyers instead of amateurs like me.
In the meantime, we are less than a “Scaramucci” from Trump finally being out of power so let’s cross our fingers and if unlike me you’re religious pray that he’s too busy trying to figure out how to keep his lard-ass out of jail and from losing every asset the Trump Organization has to do too much more damage.