Donald Trump made the bizarre move of pardoning Dick Cheney’s former Chief of Staff Scooter Libby this week. I think it has more to do with the addition of Cheney’s longtime ally John Bolton to Trump’s staff this week. But a lot of other people think it’s an attempt on Trump’s part to send a signal to Michael Cohen that a pardon is on the table, so he won’t be tempted to cut a plea deal. That would actually be the biggest blunder that Trump could commit.
There are a lot of unknowns here. We don’t know if the courts would allow Donald Trump to pardon his own alleged co-conspirator like Michael Cohen, because there’s no precedent on the books, as no previous president has ever tried it. We also don’t know if Special Counsel Robert Mueller could get obstruction of justice charges to stick against Trump for trying to pardon a potential witness against him into silence, because again, no president has ever sunk that low, and there’s no precedent. But plenty is known about how pardons work, even though it appears that Trump himself doesn’t understand any of it.
The Fifth Amendment only protects you from having to incriminate yourself. You cannot invoke it in order to avoid testifying against someone else. If you accept a pardon, you no longer face any legal jeopardy for the crime involved, which means the Fifth Amendment no longer applies. If Trump pardons Cohen, it’ll mean Cohen will have to testify against Trump. In other words, a pardon would immediately backfire. If Trump’s goal is to keep Cohen from testifying against him, it would have the opposite effect.
Again, it’s doubtful that Donald Trump grasps this. He’s consistently demonstrated almost no understanding of criminal law, and no ability to learn. This is before getting to the fact that even if Trump pardons Michael Cohen on all potential federal charges, there would be nothing to stop the State of New York from charging Cohen with similar crimes, which Trump can’t pardon. So in the end Cohen would have to cut a plea deal anyway. If Trump tries to pardon his way out of this, he’ll get a crash course in how the law actually works.