People are generally never more nervous than when things are on the verge of going their way, and it may be even more true for liberals. Now that Special Counsel Robert Mueller is on a rampage and has been Hulk-smashing Donald Trump’s entire world for the past week, I keep getting nervously asked if this is the part where Trump throws up his hands and tries to pardon everyone. So let’s talk about these pardons.
We have to preface these discussions by pointing out that Trump is so erratic, you can never predict what he’ll do next with 100% certainty. In all seriousness, he could wake up tomorrow and decide to pardon Carrot Top for no particular reason, and we’d only be half surprised. On the other hand, with a few overly aggressive exceptions, Trump has mostly been tepid when it comes to these kinds of game changing moves. He talks a big game and then does very little of it. But the real question here is whether the pardons would even work.
No U.S. President has ever tried to pardon his own alleged co-conspirators in a crime. So if Trump does start issuing pardons for people like Rick Gates or Michael Flynn, the courts will have to step in and rule whether such pardons are constitutional. There’s a strong argument that such pardons would be an act of obstruction of justice, and could therefore be struck down on the spot.
It’s also important to note that in many of these instances, it’s too late for pardons to help Trump. For instance, Gates and Flynn have already spilled their guts to Special Counsel Robert Mueller. If they’re pardoned, they’ll get to avoid prison, but Mueller will still have the evidence against Trump. There’s also another factor to consider. Because accepting a pardon is legally established by the courts as an admission of guilt, Trump’s people would be waiving their Fifth Amendment rights in the process. In other words, anyone he pardons will have to testify against him to Mueller.
In short, if Donald Trump begins pardoning his own people, there is probably only a fairly small chance that those pardons would even be allowed to go into effect, a big chance that those pardons would directly backfire on him, and in large part it’s too late for such pardons to matter anyway. The time for Trump to pardon his co-conspirators was six months ago, before they started cutting deals against him. We don’t know if Trump’s attorneys have informed him of any or all of the above.
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