This post has been updated since the New York Times first reported Wednesday that a lawyer for President Trump talked about the idea of pardoning two of Trump's former advisers, Michael Flynn and Paul Manafort, with their lawyers last year. The Washington Post reports Trump's former lawyer raised the possibility of a pardon for Manafort.
Okay, Mr. President. We hear you're not happy that the special counsel's investigation seems to be inching closer to you, and you're exploring how to/whether you could pardon former aides, people close to you and maybe yourself. There's evidence you seriously considered pardoning people in your inner circle who are ensnared in the Russia probe. On Wednesday, the New York Times and Washington Post reported one of your then-lawyers broached the subject of pardoning two of your top aides last year.
Why you would want to pardon them makes sense. The independent investigation led by Robert S. Mueller III has indicted at least four of your campaign officials, three of whom were in your inner circle. It's likely that those who have pleaded guilty are cooperating with Mueller on what they know to avoid heavier criminal penalties.
I spoke with some legal and ethical scholars about your pardon power, and here's the best I can come up with: You could pardon whomever you wanted, including yourself, from any federal crimes and probably get away with it legally. But politically, you could be in a whole host of troubles and could even lose your job.
Let's run down how this might play out, in three plausible scenarios.
Scenario 1: Mueller charges your campaign aides or family with a federal crime
Well, he has already done this. Mueller has charged four of your former campaign advisers with crimes, and three — former national security adviser Michael Flynn, former campaign aide Rick Gates and former foreign policy adviser George Papadopoulos — have pleaded guilty. Former campaign chair Paul Manafort is fighting his charges.
Mueller's investigation continues, specifically into your family's financial ties, your political campaign's connection to Russia and even whether you tried to obstruct justice. He wants to sit down with you ASAP.
How a pardon would work: You can pardon Flynn, Gates, Papadopoulos and whomever else gets charged. You have the power to pardon people for crimes and the power to commute sentences. Presidents have pardoned members of their administration before: President Gerald R. Ford pardoned former president Richard M. Nixon; and President George W. Bush commuted the sentence of former aide Scooter Libby.
But: There's a reason presidents usually issue pardons on their way out the door: It's politically unpopular to pardon almost anyone.
And it would probably be especially distasteful to the American public if you pardon your friends, said Jens David Ohlin, vice dean of Cornell Law School: “It seems utterly corrupt for a president to escape criminal responsibility by pardoning his inner circle.”
Given that Mueller is already investigating whether you obstructed the FBI's investigation into Russia, is that really such a good idea?
Another but: Pardoning someone doesn't get them out of testifying. Once someone is pardoned, logic suggests that they can't invoke the Fifth Amendment to avoid testifying, ethics expert Melanie Sloan said. “You only have the right to exercise the Fifth Amendment when there's a possibility you could incriminate yourself and be charged with a crime.” So if you pardon people and Mueller's investigation is ongoing, they could be compelled to testify against you.
Speaking of …
Scenario 2: Mueller charges you with a crime
We're not sure this is a possibility as long as you're in office. The long-held view in the Justice Department is that a sitting president can't be prosecuted. The only way around that is impeachment, over which Congress has full discretion. Mueller could challenge that, but it would be remarkably aggressive on his part and require his investigation to fight two court cases: 1) whether you can be prosecuted, and 2) the crimes with which you would have been charged.
How a pardon would work: You issue it and see what happens. There really is no case law about whether a president can pardon himself; it has never happened. And Ohlin thinks it would be difficult for anyone to sue you over it, because it's not clear who would have legal standing to argue that they were directly affected by this.
But: If pardoning your family could bomb your approval ratings, pardoning yourself could be political suicide. “It smacks of royal authority,” Ohlin said. “If a president can pardon himself, he's basically saying, ‘Well, I'm above the law,’ and that sounds like the type of royal authority we rejected when we created America.”
Even considering pardoning yourself crosses a line ethically, Sloan says. If you went through with it, that might be the tripwire that would persuade moderate Republicans to join Democrats and start impeachment proceedings. Already a House Democrat has filed an article of impeachment against you, and Democrats have a real chance of taking back the House of Representatives this November.
And all you need to get impeached is a majority of Congress to agree that you've committed “treason, bribery, or other high crimes and misdemeanors.” They can define those terms however they wish.
If you go through with pardoning anyone related to the Russia investigation, especially yourself, both Ohlin and Sloan think impeachment is the greater danger to you than any legal consequences.
Scenario 3: Mueller's investigation leads to state or local charges for you or your inner circle
This is a possibility, given that Mueller is reportedly investigating your financial ties, and you and your family have a lot of those.
How a pardon would work: It wouldn't. The Constitution gives states the right to conduct their affairs without interference from the federal government. So your pardon pen is useless in this case.