Throughout his four years in office, President Trump has shattered the norms of ethical and responsible conduct—and he is not done yet. Reporting that Trump is considering issuing pardons to members of his family, his close associates, and even himself suggests that Trump’s final days in the White House will be just like the others—or worse. Those reports seem credible since Trump has already issued a commutation to Roger Stone and a pardon to Michael Flynn. Both Stone and Flynn were charged with federal felonies in conjunction with Special Counsel Mueller’s investigation.
Why Trump and his associates really fear prosecution
If Trump goes ahead with corrupt pardons, we must not let them be the final word on his corrupt and criminal presidency. Trump and his cronies will no-doubt portray his lame duck pardons as an attempt to protect themselves from politically motivated “witch hunts,” the president’s favorite term for investigations he does not like. No one should be fooled, because nothing is further from the truth. Trump and his associates have engaged in a breathtaking array of unlawful and potentially criminal misconduct. If these pardons do happen, they very likely reflect sincere concern that Trump and his associates face legitimate exposure to investigation and prosecution, not a sincere concern about vindictive prosecution.
Ironically, the type of vindictive prosecution that Trump may try to use as a fig leaf for broad pardons has only been proposed by Trump himself. Trump is the only presidential candidate or president in recent history who has made a practice of trying to investigate or jail his political rivals. In 2016, Trump pledged to lock up his 2016 rival. In 2019, Trump used the powers of the presidency to pressure Ukraine into investigating one of his Democratic opponents, now president-elect Joe Biden. Contrast that with statements from Biden and his incoming chief of staff, indicating that the Biden White House expects to have no role in politically charged investigations whatsoever. What Trump has to fear is that the law and the facts may not be on his side and that Biden will let experienced, career prosecutors make independent judgments about whether to charge Trump and his associates.
Why corrupt pardons can’t totally protect Trump’s allies
Our responsibility is not simply to understand the corrupt nature of Trump’s anticipated pardons; rather, it is to respond appropriately. That begins with continuing to pursue accountability for the unlawful conduct of President Trump and his associates wherever possible.
The president’s pardon power is broad, but it is not all-encompassing. It cannot supplant the truth, because a pardon does not erase the facts that support or could support a conviction. A pardon only erases a conviction, or the possibility of conviction. The press, government watchdogs, the next administration, and congress all have a responsibility to continue exposing the full extent of misconduct during the last four years. Only by continuing to investigate can we hope to explain and respond to the damage that Trump has inflicted upon our democracy.
Those investigations could bear much more fruit after Trump leaves office. For starters, the Biden administration will be in a position to waive ridiculous claims of executive privilege that shielded Trump and his cronies for years. Those who obstruct federal proceedings, perjure themselves, or show contempt for congressional subpoenas in these investigations will face a much graver threat of criminal prosecution once the Department of Justice has new leadership. And remember: the pardon power does not extend to crimes that have yet to be committed.
We must also pursue whatever consequences are still available for those who accept a Trump pardon. Presidential pardons only apply to federal criminal offenses and do not extend to federal civil penalties, including civil violations of the tax code. These violations must be pursued regardless of whether Trump issues pardons. If Trump and his businesses engaged in tax fraud and underpaid federal taxes for decades before his run for president, there is nothing insidious about trying to recoup those losses. All Americans and their companies should be paying their taxes, and forcing Trump and company to pay theirs is not retribution—it’s justice.
Pardons also do not apply to state offenses, and there is also no reason why Trump and his businesses should be absolved of state crimes. Election to the White House should not be a get out of jail free card for someone who may have engaged in massive tax, insurance, and bank fraud. New York and Manhattan authorities should continue investigating Trump and his businesses and bring charges if they think they have a case.
It might also be possible to pursue federal criminal charges against those who accept pardons by arguing that certain pardons are invalid. That approach probably will not be possible in many cases because there are few limits on the pardon power; however, it is not clear whether the Constitution permits a president to pardon himself or his own business, to pardon his co-conspirators, or to issue a pardon in exchange for a bribe. None of those uses are consistent with the historical understanding and practice of clemency. Upholding such pardons would also upend our constitutional order by emboldening presidents and their associates to commit crimes with impunity knowing that they can use the pardon to violate laws of general applicability while escaping criminal punishment.
And finally, the gift or receipt of a pardon could be the subject of its own criminal investigation if there is reason to think that it was a criminal act. President Clinton’s lame duck pardon of Marc Rich, a major donor to the Democratic party, was investigated by the FBI in 2001. If there is evidence that Trump’s lame duck pardons are the product of a corrupt exchange or if they are part of a conspiracy, the Department of Justice should open an investigation.
Accountability is the only way forward
Pursuing accountability after Trump leaves office is not an attempt to relitigate the past. It is an effort to prevent Trump and future government officials or their associates from eroding our democracy. In courtrooms across America, prosecutors ask judges to impose sentences that serve a variety of purposes, including incapacitation and deterrence. When they do so, their goal is to stop those who are harming our society from continuing to do so and to discourage them (and those who might commit similar offenses) from doing so in the future.
The corrupt influence and example of President Trump and his associates are not going to go away on their own. President Trump is reportedly considering announcing his 2024 candidacy in January, and he will undoubtedly inspire a new generation of politicians regardless of whether he runs again. After bearing witness to the last four years, the question we need to ask ourselves is not whether we can afford to pursue accountability when there are so many pressing matters to confront; rather, it is whether we can afford not to.