Trump’s pardon power is a double-edged sword

Trump's pardon power is a double-edged sword

By: Asha Rangappa
President Trump kicked off the week with a novel constitutional claim: That he has the "absolute right" to pardon himself.
It's no surprise that the pardon power holds so much appeal for Trump: As one of the only monarchical powers imported from the British system into the US Constitution, the pardon gives the President the chance to play "king" even as he is powerless to stop special counsel Robert Mueller's investigation that seems to be creeping closer into his inner circle.
In fact, Trump's targeted use of the pardon power so far -- including ones he is currently considering -- gives us a window into how he views the pardon power. Consciously or not, the President appears to see the pardon power as a personal weapon for him to use in potentially achieving four things in the special counsel investigation:

Absolving himself of possible crimes

Even if the President doesn't try to pardon himself, the pardons he has granted or may grant to others could be viewed as self-pardons by proxy. That's because almost to a person, the crimes that Trump has selected for leniency are ones that he might be on the hook for himself.

Scooter Libby, for example, whom the President pardoned in March, and Martha Stewart (whom the President has floated as a potential grantee) were both convicted of making false statements(a crime to which his lawyer, Rudy Giuliani, admits the President may expose himself if he sits down for an interview with the special counsel) and obstruction of justice (for which he is currently being investigated).

The President's most recent beneficiary, Dinesh D'Souza, was convicted of violating campaign finance laws -- the same violations Trump may be implicated in if he knowingly accepted foreign assistance in the 2016 election. And Rod Blagojevich, another possible recipient of the President's mercy, was convicted on public corruption charges, similar to those that Trump's lawyer, Michael Cohen might be facing.

By exonerating these individuals or contemplating doing so, the President is likely also implicitly rationalizing the same behavior for which he himself may be held to account.

Sending a message to his associates

By showing his willingness to use his pardon power so early and often in his term, the President may be giving hope to former friends and associates, like Paul Manafort and Michael Cohen, who may be weighing whether or not to cooperate with the feds. But the signal he is sending goes beyond just reassuring them to stay strong. He's also giving them permission to undermine the investigation itself.

This is because many of the crimes that the President appears keen on pardoning are those that are referred to by prosecutors and others as so-called "process crimes."

This "family" of crimes -- which includes crimes like false statements, obstruction of justice, witness tampering and perjury -- exist to protect the integrity of the investigative and judicial process, and are the pillars of the rule of law itself. Trump's first pardon was of Joe Arpaio, the former Arizona sheriff who was convicted of criminal contempt of court -- a "process crime" that ensures the authority and power of the court to enforce its rulings.

By pardoning Arpaio, the President thumbed his nose at the investigative and judicial process -- and made it clear that crimes that involve thwarting investigators, prosecutors and judges may be precisely those that are most worthy of forgiveness.

Desensitizing the public

The President's proclamation that he can pardon himself is raising the ante on the media circus surrounding his pardons for others. From Libby to D'Souza to Arpaio, each of Trump's pardons has sparked an outcry from prosecutors, legislators and much of the public.

But every media frenzy is a boon for the President, especially if he hopes at some point to pardon anyone associated with the special counsel investigation -- or even himself. By flouting norms, like bypassing the Office of the Pardon Attorney, and pardoning controversial public figures who automatically trigger public outrage, Trump has created a pattern in which pushback against his pardons are to be expected.

And by normalizing criticism and controversy around his pardons, Trump has succeeded in creating an environment in which future pardons of his associates (or even himself) could appear less extraordinary than they would otherwise.

Discrediting his opponents

Many of the recipients of Trump's recent pardons have something in common: The people who oversaw their investigations and prosecutions.

For example, Patrick Fitzgerald -- who was appointed as a special counsel by then-Deputy Attorney General James Comey using the same DOJ regulations that Mueller is operating under now -- prosecuted Scooter Libby (he also later prosecuted Rod Blagojevich).

The FBI investigated D'Souza while Comey was acting as its director and former US Attorney Preet Bharara, who was ultimately fired by Trump, prosecuted him. And under Mueller's tenure as director, the FBI investigated Stewart and Blagojevich.

Standing alone, these connections could be dismissed merely as Trump being vindictive against Comey and Mueller. But Trump has also attacked the FBI generally as being in "tatters," has placed the word "Justice" in quotes when referring to the DOJ, and even alleged that the special counsel regulations authorizing Mueller's appointment are "unconstitutional."

Approached in this context, Trump's pardons fit into a convenient narrative where he targets for mercy those who were supposedly treated unfairly by overzealous FBI agents and prosecutors with an agenda. It's convenient because many of them are the same people who are investigating him now.

Whether Trump will push the Constitution to its limit and attempt to pardon himself remains to be seen. But he should think carefully before he does so.

Such a pardon, if it is valid (and that's debatable) necessarily implies an admission of guilt. A self-pardon would eliminate the President's Fifth Amendment right to refuse to incriminate himself, which would in turn eliminate his excuse for avoiding an interview with Mueller (if Trump can pardon himself, there's no criminal liability to fear).

In short, Trump would have no basis to refuse a subpoena to answer Mueller's questions. In his attempt to place himself above the law, Trump's abuse of the pardon power could land him right under the special counsel's thumb.

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Posted by Asha Rangappa