The reasonable case for a Trump self-pardon

I would be astonished if Donald Trump left office without a presidential pardon. How he secures it is a purely mechanical question. Nothing in the text of Article Two suggests that he could not simply issue a pardon on his own behalf. It is also possible to imagine him delegating the power to Mike Pence under the terms of the 25th amendment. (Another, more audacious scenario involves Trump resigning just before Inauguration Day, making Pence rather than Joe Biden our 46th president, albeit for a single day. Mother would be proud.)

So much for whether Trump "can." A better question is whether he should. I do not have any pollyannish ideas about establishing dangerous precedents or the dignity of the presidential office. What matters is whether it will help him.

Here I think the answer is far from clear. There are downsides to accepting a pardon, including the waiver of his Fifth Amendment rights. Trump might be immune from federal prosecution for supposed crimes committed during or even well before his term in office, but he would still be legally obligated to answer questions in any future showboating hearings House Democrats choose to conduct on pain of charges for contempt. This is something he would probably prefer to avoid.

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One also gets the impression that a pardon is exactly what his successor is hoping for. Instead of having to decide whether appeasing the Arlington dog moms chanting "Lock him up!" should be the first priority of his administration, Biden could simultaneously insist that he is taking the high road and lament his inability to direct the Justice Department to investigate Trump. All the dirty work could be left to state-level authorities, who have a vast range of tax and other relevant statutes at their disposal. As a lawyer friend in New York put it to me recently, "Trump is going to be holding remote campaign rallies in 2024 from either Dubai or Sing Sing."

Does this mean the scheme should be abandoned? It depends ultimately on whether Trump thinks he is vulnerable to prosecution for offenses committed before he became president. Even without a pardon, the powers at his disposal to obfuscate his conduct while in office are all but limitless — the content of his breakfast could be declared a matter of national security. But if he is concerned about a possible tax case or other allegedly criminal activity — he almost certainly violated federal election law in 2016 during the Stormy Daniels affair — prior to his time in office, it could be argued that he has no choice but to box in his enemies here. This, I suspect, is what his lawyers will ultimately conclude.

I have written all of this while ignoring what some will consider the more salient question of whether Trump pardoning himself is the morally appropriate course of action. This has been intentional. The idea that Trump the television star and real estate mogul would have found himself facing federal or state prosecution if he had never sought, much less won, the presidency beggars belief. Any such charges — and I fully expect them to come — will be politically motivated recrimination, spiteful acts of revenge. I do not blame his opponents for wishing to proceed with such. But I also cannot pretend that he is in any sense obligated to take it lying down. He should and will use the vast array of powers available to him to limit his exposure to prosecution.