Please Pardon Me!

 

PLEASE PARDON ME!

 

Donald Trump’s presidency is unprecedented in so many different ways. Throughout his presidency, he has pushed the boundaries of the possible and the imaginable. For example, he has ruled by decree (Executive Order) extensively, wielding his pen liberally to extend the power of the increasingly powerful office of the Imperial Presidency.

Most recently he has become the first losing president since 1896 who has refused to issue a concession statement. Nor, I predict, will this man who refuses to admit that he ever loses, ever concede… unless it’s to concede that the election was stolen from him. I predict he won’t even show up for President-Elect Biden’s Inauguration on January 20^th, as the experience would just be too humiliating and emotionally painful for him.

I also predict he will push the boundaries in one last direction before he is, perhaps physically, forced out of the White House. All departing presidents, both Democrats and Republicans, have liberally used their pardoning power before leaving office. Trump has already generously pardoned a large number of convicted felons. He will do so again before leaving office. The list of names on his roster of pardons will include perhaps everyone who has gone to prison for him, so long as they haven’t turned on him during the interim. And the last name on the list will be Donald J. Trump.

Some have speculated that Trump will resign before Inauguration Day in the expectation (perhaps privately agreed upon) that President Pence will then pardon him from anticipated criminal prosecution. I don’t believe Trump will resign. That would be another form of losing, and he can’t endure losing. So, he will not resign in expectation of a subsequent presidential pardon from Pence. He will, instead, push the envelope once again and pardon himself.

WE DON’T KNOW whether he can legally do this. No president has ever preemptively pardoned himself to escape expected criminal prosecution (and Trump will face a host of criminal prosecutions once he leaves office). The Constitution says nothing about this possibility. Perhaps the Founders never imagined it as a possible problem, but there is so much about the Trump presidency that has never before been imagined.

Since it has never before happened, it is an action that has never been litigated and decided one way or another by a judge or panel of judges. Constitutional lawyers are divided about the legality of such an action; some say it would be legal, others think not.

And so the legality of a president’s preemptive pardon of himself would have to be decided in court, perhaps, finally, the Supreme Court. Trump has already placed three justices on the Supreme Court in hopes that they would one day rule in his favor. Perhaps they will not end up, after all, ruling that the election was stolen from him. President-Elect Biden’s final 306 Electoral College votes (which Trump termed “a landslide” when he won with 306 Electoral College votes in 2016) seems to be too large to overcome. But, they may well rule in his favor when it comes to such an unexpected and unprecedented expansion of the presidential power of pardon.

In the great scheme of things, such an expansion of the power of presidential pardons will not affect the daily lives of ordinary Americans going about the business of simply trying to survive in this age of the pandemic. But it would be yet another way in which Donald J. Trump expanded the powers of the Imperial Presidency, thus moving America one more step away from the rule of law and equal justice for everyone, and toward a more autocratic rule of an increasingly powerful Imperial President, whoever that Imperial President may be.