IF THE LAW SUPPOSES THAT, THE LAW IS AN ASS -- AN IDIOT
~ Mr. Bumble in “Oliver Twist”
The first thing you need to know about presidential pardons, a few of which we might anticipate after the midterm elections, is that they're complicated. The second and more important thing you need to know is that Donald Trump's ability to grant pardons may have been compromised by the extraordinary number of important people who have forsaken kissing his ring and may testify against him in the forthcoming tsunami of legal actions stemming from the Russia scandal and other Trumpian collisions with the law that will curtail if not end his presidency.
Presidents have been granting pardons since the birth of the republic. George Washington pardoned 16 people, most in connection with the Whiskey Rebellion. Presidents are given the right to pardon by Article II, Section 2, Clause 1 of that hallowed document Trump loves to hate -- the U.S. Constitution, which gives a president the power
[T]o grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.Among the presidents who granted pardons pictured above in Andy Thomas's tacky variation on Dogs Playing Poker, which Trump was gifted by the execrable Darryl Issa and of course loves because of his slim physique and being surrounded with people who are nearly as great as himself, are Eisenhower, Nixon, Reagan and G.W. Bush.
Together, they issued a combined 2,689 pardons, which seems like a lot until you consider that the vast majority of them were for people of little or no historical significance.
Trump has issued seven pardons, three of which are of note -- Arizona Sheriff Joe Arpaio, Dick Cheney poodle Lewis "Scooter" Libby and conservative hack journalist Dinesh D'Souza. But if Special Prosecutor Robert Mueller gins up his indictment machine post-election, which it is widely believed he will do, Trump might be busy.
The potential pardonable perps in Mueller's crosshairs include but are not limited to administration and campaign insiders Hope Hicks, K.T. McFarland, Carter Page, Reince Preibus and Roger Stone. Then there are family members Donald Trump Jr. and Javanka -- Jared Kushner and Ivanka Trump.
Considering all the bad actors in the Russia scandal and associated with Trump's myriad financial intrigues, the list might be longer, but the special counsel and other federal prosecutors have flipped some seriously major horsepower. They include Michael Cohen, Trump's longtime lawyer-fixer; Paul Manafort and Rick Gates, his former campaign manager and deputy campaign manager; Michael Flynn, his disgraced national security adviser; Felix Sater, his partner in dodgy real estate deals, and Allen Weisselberg, the Trump Organization's chief financial officer.
Then there is Donald McGahn, who resigned as White House chief counsel on Wednesday. His problematic role in Trump's repeated efforts to obstruct justice would seem to warrant an indictment, but he already has spoken at length to Mueller in one of the more curious aspects of the train wreck known as Trump's legal team, which has wrestled with having to defend a boy-man who believes he's smarter than everyone else.
And is guilty as sin.
Here are some pertinent questions and answers about presidential pardons based, in part, on the knowledge of white-collar crime expert Randall Eliason, a former assistant U.S. attorney who is a law professor and Washington Post op-ed contributor:§
WHAT DOES A PARDON COVER?
Glad you asked, because it gets tricky.
Exactly what crimes are covered depends on the language of the pardon itself, but the crimes must be federal and must have already been committed.
The president can't pardon someone for state crimes, but that is tricky, too.
Even with a presidential pardon for federal financial crimes, a perp could be liable for state financial crimes, to cite a hypothetical, but that is clouded by the potential issue of whether a state prosecution would be barred by the Constitution's double jeopardy clause, which is at the heart of Gamble v. United States, a case pending before the Supreme Court that some people fear would give Trump unchecked pardon powers if it is decided in the plaintiff's favor.
CAN GRANTING A PARDON BE A CRIME?
If Trump grants a pardon for a corrupt reason, the pardon itself might still be valid, but he and others involved could be investigated for criminal misconduct in connection with granting the pardon.
Example: President Clinton was criminally investigated after he left office for his pardon of sleaze ball Democratic financier Mark Rich amid suspicions that the pardon was in exchange for big campaign contributions and donations to the Clinton presidential library.
Another example: If Trump pardons witnesses against him he could be charged with obstruction of justice, although some legal scholars like Trump toady Alan Dershowitz argue (wrongly, I believe) that official executive actions such as granting a pardon cannot in and of themselves be charged as obstruction of justice.
WHAT IF THOSE WITNESSES HAVE FLIPPED?
They probably can still be pardoned.
A plea agreement such as those signed by Cohen, Manafort and other flipees is basically a contract and could include a no-pardon condition, but that condition would be largely meaningless.
Example: If Cohen had promised federal prosecutors in New York that he would reject a pardon from Trump for his own financial crimes and the president goes ahead and pardons him after he pleads guilty to those crimes, he could turn around and still accept the pardon. Prosecutors could then void the plea agreement, they won't be able to prosecute Cohen for those crimes because he has been pardoned.
CAN A PRESIDENT PARDON HIMSELF?
Nobody knows because it's never been tested although as a breaker of so many norms, Trump may well be the first.
Trump has claimed that "numerous legal scholars," including that douche bag Dershowitz, believe he has the absolute right to pardon himself, but most experts disagree. In 1974, the Justice Department advised Nixon that a president may not pardon himself because, in essence, no one can be the judge and jury in his own case.
Example: Trump's infamous hypothetical that he wouldn't lose support if he shot someone in the middle of Fifth Avenue and could pardon himself anyway. He might be able to pardon himself, but still would be subject to a New York state prosecution for homicide.
Incidentally, the flood of speculation following Rod Rosenstein's interview with the Wall Street Journal this week was expected, but shed no new light.§
The deputy attorney general, who appointed and is Mueller's boss because AG Jeff Sessions perjured himself into recusal on anything having to do with the Russia scandal, basically said three things: First, Mueller has turned up substantial evidence that Russia interfered with the 2016 election. Second, that he has full confidence in Mueller. Third, that Trump has full confidence in Mueller.
The first and second are old news, while the third is a convenient lie since Trump continues to insist there was no interference and that Mueller's investigation is a witch hunt although it has resulted in indictments against 25 or so Russian witches.
What would have been new news -- and really big new news, at that -- is if we learned whether Mueller has the evidence to charge Trump campaign perps with colluding with Vladimir Putin's cyberwarriors and whether he will recommend to Rosenstein that Congress be informed that Trump committed impeachable offenses.
For that we will have to wait a little while longer.
Click HERE for a comprehensive timeline of the Russia scandal
and related developments.