The Dangerous Possibilities of Trump’s Pardon Power
By Jeannie Suk Gersen
December 3, 2020
newyorker.com
In a Rose Garden ceremony last week, Donald Trump described his final Thanksgiving ritual at the White House as “the official Presidential pardon of a very, very fortunate turkey.” The annual theatrics of the President sparing a bird from the fate of its flock provide a humorous performance of a profound power: the ability to grant an exception to the rule of law. In the waning days of a Presidency known for exceptional self-dealing, it seemed seasonable that Trump followed up the symbolic ceremony by actually pardoning Michael Flynn, his former national-security adviser, who pleaded guilty, in 2017, to the crime of lying to federal investigators about his contacts with the Russian Ambassador during the 2016 Presidential transition. The remaining weeks will involve drama about other associates, officials, and family members whom Trump may or may not pardon on his way out, including those who haven’t been convicted or even indicted. The candidates include Trump himself, who has stated in a tweet, “I have the absolute right to PARDON myself.” Whether or not Trump will create, in the coming weeks, the spectacle of the first Presidential self-pardon, Democrats’ desires for accountability may clash with the Biden Administration’s need to move forward and restore normalcy.
Trump’s use of the pardon power since 2017 has largely appeared self-interested, rewarding political support and personal loyalty, and tweaking perceived enemies. He pardoned the former Maricopa County sheriff Joe Arpaio (an early supporter of the birther conspiracy), the conservative publisher Conrad Black (who published a pro-Trump book), the conservative commentator Dinesh D’Souza (who produced films that criticized Barack Obama and Hillary Clinton), and the former Illinois governor Rod Blagojevich (who, Trump said, was prosecuted by “the same people” Trump associates with investigations of him). His pardon of Dick Cheney’s former aide Lewis (Scooter) Libby appeared to signal that Trump rewards not rolling on one’s boss.
Most disturbingly, Trump has seemed to hold out the possibility of commutations and pardons to associates in order to protect himself against snitching. Trump commuted the sentence of his friend and adviser Roger Stone, in July, after a jury convicted Stone of witness tampering, obstruction of justice, and lying to Congress in the special counsel Robert Mueller’s investigation of Russian interference in the 2016 Presidential election. Whatever Trump and Stone may have said to each other in private, their public comments smacked of a clemency-centered deal. Mueller concluded that Trump’s public statements—including condemning “flipping” and praising Stone’s “guts” for refusing to coöperate—“support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President.” Stone, for his part, told an NBC News reporter that he didn’t want a pardon, which implies guilt, but that he expected a commutation, because Trump “knows I was under enormous pressure to turn on him.”
In these last weeks of his Presidency, Trump will likely use the pardon power to reward other associates who refused to implicate him under prosecutorial pressure. The candidates include his former campaign manager Paul Manafort, who is serving a federal sentence for financial crimes and witness tampering. Last year, the sentencing judge rebuked Manafort for misleading the court and the prosecutors, implying that she believed Manafort was holding out for a pardon. Trump may also attempt to immunize loyal associates who have not yet been convicted of criminal conduct that may have benefited him, his businesses, or his campaign. Steve Bannon, who has been indicted for defrauding GoFundMe campaign donors in order to divert funds to Trump’s border wall, could receive such a pardon, as could Trump’s children and his son-in-law, who haven’t yet been indicted. Trump’s lawyer Rudy Giuliani has been under federal investigation for possible violation of foreign-lobbying laws, as part of his role in Trump’s attempt to pressure Ukraine to announce an investigation of Joe Biden. Trump was impeached for abuse of power in connection with that effort. Giuliani has reportedly broached with his client the topic of a pardon for himself. All of this amounts to possible bribery, in which Trump exchanges pardons for something of value, namely forbearance from implicating him in crimes. It did occur to the Framers that a President might be tempted to pardon cronies who committed crimes that served his interests; George Mason, a delegate to the Constitutional Convention, worried explicitly that a future President “may frequently pardon crimes which were advised by himself.” But the Framers appear to have thought that fear of impeachment would deter such abuses of the pardon power. We may surmise from experience that they were mistaken.
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