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Opinion Trump is ‘joking’ about pardons? How is this a defense?

(Nicholas Kamm/Pool via AP)

We are now at the point where President Trump’s own officials are basically admitting that he has dangled pardons to underlings, as part of an apparent effort to get them to build his border wall in time for reelection.

But they are qualifying this. Or at least they think they are: They are claiming Trump is “joking."

But how exactly is this a defense? It’s actually an admission — and can we please recall that Trump has repeatedly dangled pardons before, in a manner that had no joking aura around it whatsoever?

The New York Times is now the second news organization to report this pushback, after The Post reported on it Tuesday. A senior administration official told the Times that Trump never seriously offered any pardons: “He winks when he does it.”

These supposed joke-pardon offers have come after he has instructed aides to “aggressively seize private land and disregard environmental rules,” as The Post puts it, adding the crucial detail that Trump has offered pardons when aides object that such directives are illegal.

Trump raged on Twitter that any suggestion he offered pardons is “totally fake.” But his own aides, by allowing he has done this as a “joke,” have partially undermined this claim.

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Let’s walk through the ways this isn’t actually a defense. First of all, as I’ve noted, it puts Trump’s underlings in the position of having to decide whether to interpret Trump’s apparent demand that they break the law, and his offer of a pardon, as a real directive and offer.

Bolstering this point, we now have it straight from a senior official that Trump “winks” when he says this. If that sounds familiar, that’s because it calls to mind former Trump fixer Michael Cohen’s arresting description of Trump’s M.O. when it comes to communicating nefarious directives to his consiglieri.

As Cohen testified to Congress, Trump doesn’t “directly” issue such instructions, because “that’s not how he operates.” Instead, Cohen said, Trump would “look me in the eye” and ostensibly state the opposite of what he really intended, a device Cohen came to understand perfectly well. This is unquestionably very plausible on its face.

I cannot prove Trump is doing something similar when he dangles a pardon with a “wink.” But would it be unreasonable for officials (or indeed the rest of us) to at least wonder whether he might be? And isn’t putting those officials in that position itself a flagrant abuse of power?

Testifying before the House Judiciary Committee, former White House counsel John W. Dean III compared President Trump's use of pardons to Nixon's on June 10. (Video: The Washington Post)

Officials are mum about this

Second, administration officials who are in a position to shed light on Trump’s habit of dangling pardons — jokingly or not — are clammed up tight.

Recall that the Times reported in April that Trump privately urged Kevin McAleenan, the acting head of the Department of Homeland Security, to close the border to migrants entirely — then said he’d pardon McAleenan if he encountered legal trouble. This, too, was explained away as potentially being a joke, but it “alarmed” officials, though DHS denied it.

Subsequently, House Judiciary Committee Democrats requested that McAleenan provide a list of all employees present at the meeting at which that reportedly happened, with an eye toward fleshing out the truth about the episode.

Yet now a spokesman for the Judiciary Committee tells me that on this issue, they have received “no response and no documents.” This is newly significant in light of the latest reports that Trump has again dangled pardons.

Trump has done this repeatedly

Third, we know Trump is capable of dangling pardons in a deadly serious manner — indeed, with corrupt intent — because he’s done it before. The special counsel’s report concluded Trump’s public statements about former campaign chair Paul Manafort “suggested that a pardon was a more likely possibility if Manafort continued not to cooperate” with the government.

Crucially, the special counsel also concluded that these statements were “intended” to induce Manafort not to cooperate. That’s improper intent.

Thus, Trump is perfectly capable of nakedly abusing the pardon power. And this is no small thing: as Benjamin Wittes put it, this was a “grotesque abuse of power for impeachment purposes,” and indeed “one of the most singular abuses of the entire Trump presidency.”

The unabashed, openly contemptuous nature of Trump’s abuse of the pardon power is key here. He cheerfully flaunted it; he delighted in advertising his willingness to use it. For Trump to dangle pardons as a “joke” inevitably shades into this kind of flaunting, albeit of a private sort: I’m only joking, but as I direct you to skirt laws and rules, maybe you should keep in mind that I really do have this power.

Trump’s underlying directives

Which leads to what most of us aren’t even talking about here: the very orders Trump is issuing that might ultimately require a pardon — just kidding, not really! — which he obviously isn’t joking about.

It’s still vague what precisely he has ordered. But here’s what we do know: that Trump wants the project sped up primarily so he can boast about more wall completion as part of his reelection campaign.

As law professor Laurence Tribe points out to me, this raises its own issues, constitutional and otherwise, because it in effect concedes that Trump’s concern in ordering these “takings” of land “isn’t even the public interest but his private political prospects.”

In a sense, that’s yet another kind of flaunting, one we’ve seen a great deal of from Trump: the undisguised relish he takes in using the presidency to serve his own interests, the blithe disregard of any obligation to even pretend that isn’t what he’s doing.

Some Democrats on the Judiciary Committee want Trump’s dangling of private pardons to be examined as part of their effort to determine whether Trump merits articles of impeachment. For all the above reasons, that seems like an easy call.

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