The Trumps can't get out of all their legal woes with pardons. Here's why.
Trump’s allies are encouraging him to pardon himself and his family before he leaves office. But pardons can’t actually save him from his legal troubles.
Fox News host Sean Hannity, a major Donald Trump supporter and adviser of sorts, said Monday that Trump “needs to pardon his whole family and himself” before he leaves office — an admission that Trump faces legal peril when he again becomes a private citizen after President-elect Joe Biden is sworn in on Jan. 20.
“I assume that the power of the pardon is absolute and that he should be able to pardon anybody that he wants to,” Hannity said on his radio program on Monday.
Of course, it’s unlikely that Trump has the power to pardon himself. A Department of Justice memo from 1974, just before Richard Nixon resigned in disgrace, stated: “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”
However, even if he did attempt to pardon himself and his family, Trump faces investigations in state courts that he can’t avoid with a pardon. Only federal crimes can be pardoned by a president, not state crimes.
New York Attorney General Letitia James and Manhattan District Attorney Cy Vance are separately investigating Trump for tax fraud and other financial crimes.
Vance’s criminal investigation is looking into “possibly extensive and protracted criminal conduct at the Trump Organization,” including tax fraud and bank fraud. Vance is also investigating the hush money payments Trump made to porn actress Stormy Daniels ahead of the 2016 campaign.
James is conducting a civil investigation into the Trump Organization and whether it committed tax fraud by inflating its assets to get loans and other tax breaks.
Ivanka Trump is also caught up in those New York investigations, as she seems to have been paid consulting fees from the Trump Organization even though she was an employee, possibly so the company could receive tax breaks.
All of those investigations are taking place in state court and are thus ineligible for pardons.
Trump also can’t pardon his way out of two defamation lawsuits from women — former “Apprentice” contestant Summer Zervos and journalist E. Jean Carroll — who accused Trump of sexual assault and rape, respectively.
Trump sought to have the Justice Department intervene in the Carroll lawsuit in an effort to get it dismissed. However, a federal judge ruled that Trump cannot use the Justice Department to defend him for behavior that was not part of his role as president.
With Trump’s days in office waning, he appears to be pardoning his friends and allies on the way out — even as he refuses to accept that he lost in a landslide to Biden.
Trump issued an extremely broad pardon for his first national security adviser, Michael Flynn, who had pleaded guilty to lying to the FBI about his communications with the Russian ambassador during the transition to the Trump administration.
The pardon prevents Flynn from being prosecuted for “any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection,” CNN reported.
Trump’s personal lawyer Rudy Giuliani also appears to be asking for a preemptive pardon. It’s unclear for what, but Rudy was under federal investigation for his lobbying work in Ukraine that helped lead to Trump’s impeachment.
Throughout his tenure, Trump’s pardons have often seemed political in nature, as they were given to friends and allies.
He’s pardoned people like Joe Arpaio, the racist former sheriff in Arizona who was convicted of criminal contempt of court, after he refused to stop racially profiling Latinos despite a court order.
Trump also granted clemency to longtime ally Roger Stone, commuting Stone’s 40-month prison sentence for seven counts of lying to Congress, witness tampering, and obstructing a House investigation into Trump’s alleged collusion with Russia in 2016.
According to the Pew Research Center, Trump “used his clemency power less often than any president in modern history,” according to the Pew Research Center, which found Trump has granted the fewest pardons of any president going all the way back to William McKinley, whose term ended in 1091.
Trump has only issued 28 pardons over the last four years, according to Pew. The next fewest came from former President George H.W. Bush, who only served one term and issued 74 pardons.
Published with permission of The American Independent Foundation.
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