[Self-pitying editorial aside: I submitted the following OpEd to the Washington Post, the New York Times, and the Boston Globe during the past several weeks, long before anyone was talking about what everyone is talking about today. None saw fit to publish it. Oh, the pain of being a prophet before his/her time… Sigh.]
Supporters and critics alike marveled at President Ronald Reagan’s ability to avoid any taint of defeat. He was dubbed “Teflon Ronnie” for his uncanny ability to slip and slide through crises like his dear friend Fred Astaire twirling dance partners across a ballroom floor. Even those of us who deplored his politics and policies never reviled the man himself, because we never doubted that he was driven by a desire to do the best for America, not feed an insatiable ego.
All the more paradoxical, then, that Donald Trump—in almost every way the antithesis of Ronald Reagan—will complete his presidency feeling equally free of defeat.
How can this be possible? After all, there appears to be an open-and-shut case of conspiracy between the Trump campaign and the Russian government to ensure Trump’s election as President of the United States. The email invitation to collude couldn’t have been more forthright: “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump…”
And so Trump’s campaign manager Paul Manafort, uber-insider Jared Kushner, and Donald Trump, Jr., eagerly sneaked into a secret meeting to further the Russian effort to corrupt our election. Their actions clearly violated 52 USC 30121, 36 USC 510, a law that prohibits contributions to campaigns from foreign nationals. And anyone with an IQ above room temperature has no doubt that Donald J. Trump, Sr., was deeply involved in the decision to engage in these discussions.
But that latter part will never be proved. And what is more, it seems inevitable that the whole array of investigations will come sagging to the ground like a kicked tent long before his perfidy can ever be established beyond a reasonable doubt. His presidency will run its course and he will resume his gilded and grandiose life as of pre-presidential yore.
How? Why? Because Donald J. Trump holds a Get-Out-of-Jail-Free card embedded in Article II, Section 2, Clause 1 of The Constitution of the United States—popularly known as the presidential power to issue pardons.
With the noose closing ever tighter around President Trump and his family, he will certainly do the obvious thing: go on a spree of issuing presidential pardons to his kinfolk and teammates—Donald Jr., Kushner, Flynn, Manafort, the whole bunch. He has the power to do this—even before any indictments or convictions are rendered. The Supreme Court has long since reaffirmed a president’s sweeping powers of pardon. In Ex parte Garland (1866), the court ruled that this power “…extends to every offence known to the law [except impeachment], and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
This means President Trump can preemptively absolve them of any and all federal crimes they may have committed, with just a snap of the presidential fingers. Knowing President Trump’s disdain for the opinion of any but his most ardent followers, can anyone think of a single reason why he won’t?
But, you may say, what about the “[except impeachment]” provision of the power to pardon? Not a problem for Donald Trump. If there is one talent he has demonstrated throughout his career, it is the ability to sense and exploit weakness in any who might cause him grief. The weakness may be of character, or of circumstance. He knocked off some respectable rivals for the Republican nomination by belittling them in public. He routinely stiffed sub-contractors on his projects because he knew he could bury them in legal costs trying to get paid what he owed them.
And he knows that there are enough Republicans in Congress who are sufficiently fearful or cowardly that they will never, ever rise up to impeach him. Secure in this knowledge, he will cause Robert Mueller to be fired and all the Trump/Russia and money-laundering investigations to be de-funded at the same time. Why not? With all the endangered targets in his family and team now free from any trouble, he will reason, why should Congress pursue this pointless and expensive “witch hunt”? Free at last, he’ll imagine and declare, to get on with making America great again.
I’m not sure what the Framers had in mind when making such a provision for presidential pardoning in Article II, Section 2, Clause1, of our Constitution, but surely it cannot have been this.