Would pardons really protect the president from legal jeopardy?
Cronies of President Donald Trump appear to be singing a new refrain to the tune of “Chattanooga Choo-Choo”: “Pardon me Boss, cause else I might accuse you.” Or as Trump’s alter ego Rudy Giuliani put it: “When the whole thing’s over, things might get cleared up with some presidential pardons.”
Which raises the question: Will pardons really protect President Trump from legal jeopardy? And the answer depends on which constitutional expert you ask.
On the one hand, there are those who say a sitting president cannot be indicted for acts committed while in office. If that’s the case, pardons are probably irrelevant. Since the only threat to Trump would be impeachment; and so long as there is a large Republican Senate contingent, impeachment is not a serious threat.
But suppose the crime preceded the president’s taking office?
Indeed, in the pending defamation suit against Trump for calling her a liar during the election campaign, Summer Zervos, a former “The Apprentice” contestant who had accused Trump of sexual assault, a judge denied the president’s motion to dismiss, commenting “no one is above the law.”
And criminal prosecution might be even less burdensome to sitting presidents. In a criminal case, a defendant cannot be subjected to depositions as they would be in a civil proceeding.
Furthermore, not all experts agree that the president cannot be criminally charged for offenses such as “obstruction of justice.” In that case, pardons could come into play. But would they really protect the president?
The answer there is “maybe.” If the defendant were charged with a crime, the president could issue a pardon either before or after conviction. But once pardoned, the person loses his/her Fifth Amendment right to refuse to testify on grounds of self-incrimination. If the person refused to testify, the sanction would be for contempt of court. The president might then issue a second pardon but that would clearly be obstruction of justice if he was keeping somebody from testifying against himself!
Plus, a president can only pardon offenses against federal law. If the offense might also violate state law — such as money laundering — the pardoned one can still be forced to testify in a state proceeding.