Pardon Me Myself and I

by Bob Schwartz

Last November I wrote:

A best guess is that Trump would love to pardon everybody, or almost everybody, who might be caught in the net of the special investigation….There is a thought that his pardon of those who might provide evidence in the ongoing investigation could be considered obstruction of justice. Of course, that charge will have to wait until he is out of office, since a sitting president cannot be indicted. Plus, he can pardon himself for any federal crimes, including that. So that would not stop Trump.

And here we are. While his pardon of others is still a work in progress, Trump now loudly claims the absolute power to pardon himself.

As with all things Trump, he has managed to distract us. Like he does with his lies. As reasonable citizens, we want to focus on important lies the president tells. But we can’t focus because he tells so absurdly many of them (3,000 and counting, according to the Washington Post).

The little issue at the moment is whether the president has the power, conditional or absolute, to pardon himself. The issue has never been litigated, and despite the overwhelming view that it is wrong, legally and morally, there is a small colorable claim for this position. Not a claim I would make as a conscientious patriotic American lawyer if Trump was my client, but a constitutional claim that could be made.

The much, much bigger issue we are distracted from is that a President of the United States is for the first time ever claiming the absolute power to pardon himself in the face of criminal activity he is charged with or has committed. Our most corrupt presidents of the past—and we’ve had a handful—have convinced themselves that they could get away with plenty. But even as crooked as they were, they believed that claiming such a self-pardoning power not only relegated them to political hell, but to actual hell itself. It seems we finally have a president who isn’t afraid of going to hell—because he is already there, and is taking us with him.

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