Yes, Trump can legally par­don his aides. But he shouldn’t.

Le­gal scholar Jonathan Tur­ley on the per­ils of try­ing to cut short the spe­cial coun­sel in­ves­ti­ga­tion be­fore it gets started

The Washington Post Sunday - - OUTLOOK - Twit­ter: @JonathanTur­ley Jonathan Tur­ley is the Shapiro Pro­fes­sor of Pub­lic In­ter­est Law at Ge­orge Wash­ing­ton University.

Pres­i­dent Trump is re­port­edly look­ing into us­ing his par­don power in re­sponse to an ex­pand­ing spe­cial coun­sel in­ves­ti­ga­tion of Rus­sian in­flu­ence in the 2016 elec­tion. If he re­ally did par­don his aides, his fam­ily or him­self to head off Robert Mueller’s in­quiry, the move prob­a­bly would be con­sti­tu­tional but ul­ti­mately self-de­feat­ing for the pres­i­dent.

In us­ing his power to par­don po­ten­tial wit­nesses against him, Trump prob­a­bly would con­vert a weak crim­i­nal in­ves­ti­ga­tion into a full-fledged im­peach­ment ef­fort. In 1833, Chief Jus­tice John Mar­shall up­held a pres­i­den­tial par­don by An­drew Jack­son by say­ing that a par­don is “an act of grace” by a pres­i­dent. A par­don in these cir­cum­stances would not be viewed as an act of grace, but a gra­tu­ity from an iso­lated pres­i­dent.

Trump clearly pos­sesses the au­thor­ity to par­don as­so­ci­ates and fam­ily mem­bers un­der Ar­ti­cle II, Sec­tion 2 of the U.S. Con­sti­tu­tion, which states that the pres­i­dent “shall have power to grant re­prieves and par­dons for of­fenses against the United States, ex­cept in cases of im­peach­ment.” Although pres­i­dents have tended to wait for con­vic­tions be­fore is­su­ing par­dons, Trump can do so in an­tic­i­pa­tion of fed­eral charges. In Ex parte Gar­land in 1866, the Supreme Court ruled that the par­don power “may be ex­er­cised at any time af­ter its com­mis­sion, ei­ther be­fore le­gal pro­ceed­ings are taken, or dur­ing their pen­dency, or af­ter con­vic­tion and judg­ment.” That is pre­cisely what Ger­ald Ford did when he par­doned Richard Nixon be­fore any charges were brought against him.

The is­sue of whether a pres­i­dent can par­don him­self is one of the unan­swered ques­tions of the Con­sti­tu­tion; it has never hap­pened in the his­tory of our repub­lic. Even Nixon did not stoop to a self-par­don, although he did re­search it. Nei­ther did An­drew John­son or Bill Clin­ton, both of whom were im­peached by the House but not re­moved from of­fice by the Se­nate. Such an act would make the White House look like the Bada Bing Club. Af­ter a self-par­don, Trump could wipe out the Is­lamic State, trigger an eco­nomic golden age and solve global warm­ing with a car­bon-eat­ing bor­der wall — and no one would no­tice. He would sim­ply go down in his­tory as the man who not only par­doned his fam­ily mem­bers but him­self.

Par­don­ing his as­so­ci­ates at this stage would clearly have a tac­ti­cal ben­e­fit, but the his­tor­i­cal and po­lit­i­cal costs of that would be im­mense. The most ob­vi­ous rea­son for is­su­ing par­dons now would not be to pro­tect any of the key peo­ple from jail but to limit Mueller’s lever­age over wit­nesses. Mueller has se­lected a team of pros­e­cu­to­rial heav­ies, some of whom are known for flip­ping wit­nesses and us­ing pres­sure to se­cure their co­op­er­a­tion. A par­don re­moves that op­tion and re­in­forces the abil­ity of close as­so­ci­ates to take a hard line with in­ves­ti­ga­tors.

Of course, the use of the par­don power to pro­tect the pres­i­dent’s po­lit­i­cal al­lies and fam­ily mem­bers would be le­git­i­mately de­cried as an abuse. It would not, how­ever, be un­prece­dented.

Pres­i­dent Thomas Jef­fer­son par­doned Jef­fer­so­nian Repub­li­cans ac­cused of trea­son un­der the Alien and Sedi­tion Act. He also is­sued a par­don for Erick Boll­man that would have al­lowed Boll­man to tes­tify against Aaron Burr in 1807. Jef­fer­son and Burr had re­ceived the same num­ber elec­toral votes for the pres­i­dency (a tie bro­ken by Alexan­der Hamilton, whose own con­flicts with Burr would later lead to the duel in which Burr killed him). Af­ter Burr be­came vice pres­i­dent, Jef­fer­son wanted Boll­man to tes­tify against Burr for al­leged trea­son in plot­ting with the Bri­tish to cre­ate a new coun­try out of ter­ri­tory in the South­west and Mex­ico. Boll­man, how­ever, re­fused to ac­cept the par­don and thus did not tes­tify.

The most re­cent abuse of par­don power was by Clin­ton. He waited un­til his last day in of­fice to par­don bil­lion­aire Marc Rich, gen­er­ally con­sid­ered one of the least wor­thy re­cip­i­ents of a par­don in his­tory. Jimmy Carter de­nounced the abuse of the par­don power for Rich as “dis­grace­ful” and at­trib­uted Clin­ton’s de­ci­sion to “his large gifts.” Worse yet, on the same day, Clin­ton par­doned his half-brother, Roger Clin­ton, in an open abuse of par­don power to ben­e­fit his fam­ily.

Trump could at­tempt to jus­tify par­dons on the ba­sis that any mis­takes com­mit­ted last year were sim­ply the re­sult of novice aides un­fa­mil­iar with pol­i­tics. Af­ter all, in 1795, Ge­orge Wash­ing­ton par­doned the lead­ers of the Whiskey Re­bel­lion, jus­ti­fy­ing his de­ci­sion by dis­miss­ing one of them as “lit­tle short of an id­iot.” The id­iot ra­tio­nale, though, does not sit well with Trump’s “any­one would have taken that meet­ing” de­fense. Nor would it be in keep­ing with Trump’s care­fully main­tained pub­lic im­age of him­self and his chil­dren.

Some of Trump’s aides could ob­vi­ously use a par­don. Paul Manafort and Michael T. Flynn are fac­ing cred­i­ble claims of vi­o­lat­ing the For­eign Agents Reg­is­tra­tion Act. How­ever, FARA vi­o­la­tions are al­most uni­formly ad­dressed ad­min­is­tra­tively, not through crim­i­nal pros­e­cu­tions. In­deed, there have been only three pros­e­cu­tions un­der FARA since 1966, when the law was last re­vised. Nev­er­the­less, pros­e­cu­tors could threaten a FARA charge to in­duce co­op­er­a­tion. Like­wise, Don­ald Trump Jr. and Jared Kush­ner will be ques­tioned be­fore con­gres­sional com­mit­tees start­ing next week; the risk of false or mis­lead­ing state­ments will be at their apex. One such false state­ment to in­ves­ti­ga­tors can be charged as a vi­o­la­tion of 18 U.S.C. 1001, or a false state­ment un­der oath to the com­mit­tees can be charged as per­jury. That can be con­sid­er­able lever­age for pros­e­cu­tors.

But par­dons would not end the in­ves­ti­ga­tion. Even if ev­ery­one were par­doned, Mueller could — and prob­a­bly would — is­sue a re­port to Congress. Like­wise, the con­gres­sional in­ves­ti­ga­tions would con­tinue. In­deed, with par­dons, wit­nesses could lose pro­tec­tions against self-in­crim­i­na­tion and could more eas­ily be forced to tes­tify. New crimes such as per­jury could fall out­side of the par­don, and such a par­don would not pro­tect against state charges. Fi­nally, the dif­fer­ence could be that the fo­cus would shift from po­ten­tial counts for in­dict­ment to counts for im­peach­ment. That change is not an im­prove­ment. The ex­ist­ing claims of crim­i­nal con­duct on Trump’s part are rel­a­tively weak and spec­u­la­tive. To move from the le­gal to the po­lit­i­cal fo­rum is to leave strate­gic high ground for a quag­mire.

Tac­ti­cal par­dons are like burn­ing bridges to slow an in­ves­ti­ga­tion. That has rarely stopped a de­ter­mined foe. In­deed, it tends to en­cour­age and swell the ranks of op­po­nents.

In the end, a par­don of Trump’s al­lies and fam­ily — let alone him­self — would de­stroy any legacy of Trump’s and de­mean his of­fice. The pres­i­den­tial par­don re­mains one of the most ma­jes­tic and sto­ried pow­ers of our Con­sti­tu­tion. Hamilton once stated that the un­fet­tered power given to a pres­i­dent re­flects its foun­da­tion in “hu­man­ity and good pol­icy.” Nei­ther would jus­tify par­dons at this stage of the in­ves­ti­ga­tion.

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