Blake Shuart: Will Trump say ‘Pardon me?’ in 2021?
Assume the following two things are true: Donald Trump will lose to Joe Biden in November, and Donald Trump will be a target of one or more criminal investigations the moment his motorcade pulls away from 1600 Pennsylvania Ave. for the last time in January 2021.
Neither of these hypotheticals is hard to fathom. Trump continues to poll poorly against the Delaware Democrat, and voter frustration is brimming as the country nestles deeper into a pandemic-driven slump. Meanwhile, Trump’s list of enemies and disgruntled ex-associates is much longer than the list of loyal sycophants who would still back him if he lost the presidency. Maybe Trump will pull together another round of last-minute heroics and send Biden back down to his basement for good, and maybe his enemies would let Trump go gently into that good night if this didn’t happen, but would you bet on it?
Trump is probably thinking the same thing. Enter the commutation of Roger Stone’s prison sentence.
The commutation of Stone’s sentence was more enlightening than it was offensive — the long and sordid history of presidential pardons in this country has been strategically downplayed by the media during Trump’s term. On his last day in office, Bill Clinton issued a whopping 140 pardons and several more commutations. Among the lucky recipients were Susan McDougal, who served time for contempt after refusing to roll over on Clinton during the Whitewater scandal, and Clinton’s brother, Roger, for past drug charges.
What Alexander Hamilton coined the “benign prerogative of pardoning” in Federalist No. 74 has often proven malignant, and history may well forget Trump’s prerogative on Stone.
But history may also reflect that Trump’s favor to Stone was designed to grease the skids for a self-pardon. Stone contends — similar to McDougal and Whitewater — that he was pressured during the Mueller investigation to testify against Trump but refused to do so, sparking an unjust prosecution. If this is true, perhaps two other things are true: Stone or someone close to him knows something that could incriminate Trump, and Trump is now playing all his angles to avoid criminal exposure.
The concept of a presidential self-pardon has been mentioned at least twice before, during the Nixon and Clinton presidencies, but its legality has never been tested. While a presidential self-pardon cannot be used to avoid impeachment — a prerogative which rests with Congress — the plain language of the Constitution grants Trump the latitude to at least attempt a self-pardon for the purpose of evading prosecution.
And if the terms of his self-pardon were broad and nonspecific, it would not be without precedent, as president Gerald Ford famously granted Richard Nixon a full and unconditional pardon for any crimes he might have committed against the United States as president.
Ultimately, there may little reason for Trump not to try it, if he does find himself vacating the Oval Office in January. Given that there is precedent for non-specific pardons and that Trump has already expended great energy in casting the Mueller investigation off as a hoax of epic proportions, the optics of the decision — to the extent Trump becomes concerned about post-presidential optics — would be manageable.
If this prediction becomes reality, the next wave of commentary will focus on another logical inquiry: If Chief Justice Roberts again finds himself casting the deciding vote, which way will he go?
Blake Shuart is a Wichita attorney.