Spoiler: No. Trump can’t pardon his way out of this mess, at least in the foreseeable future. If you’re happy with that answer, read no more. If you want to dive into the weeds, here we go:
The Constitution gives the president broad pardon powers. Hamilton said the purpose was to mitigate the cruelty of criminal punishments in “unfortunate” cases. 18th century punishments included stuff like hanging, branding, whipping, “without exceptions” (Federalists papers)
If Trump DOES try to pardon himself or co-conspirators, the pardon will be challenged in court. So far, SCOTUS has never been called on to decide whether a president can pardon himself, co-conspirators, or (former) members of his own staff.
The first argument against: A fundamental principle guiding the Constitution is separation of powers. Allowing POTUS to pardon himself (& co-conspirators) allows him to judge his own case, which violates the separation of powers. See Prof. Tribe’s argument here.
Yes, I’m adding co-conspirators & associates to Tribe’s argument. More on that later.
Second argument against: POTUS has a constitutional obligation to faithfully execute the laws, which he can’t do if he pardons himself and his associates.
Third argument against: The Constitution is designed to prevent another king. If POTUS can commit any crime he pleases and then pardon himself, he’s a dictator. NO laws would apply to him. He kills someone. Pardons himself. Imagine the possibilities. (Trump can.)
Being able to pardon associates who commit crimes or co-conspirators opens up all the same possibilities. Hypothetical: Trump tells an associate to launder a few million dollars. Associate does so and gets caught. Trump pardons. Imagine the possibilities. (Trump can).
Pardoning associates or co-conspirators open up a slew of other crimes, like bribery. (Dangling the possibility of pardons to keep someone quiet, for example = bribery and obstruction)
Even right-wing Trump defender and former Harvard Prof. Alan Dershowitz concedes that the “pardon power is not without limit.” (The quotation is toward the end of the article: washingtonexaminer.com/alan-dershowit… … )
“But what if the Supreme Court says the President has unlimited pardon power?” you ask (feeling panicked).
Presidential pardons don’t cover state crimes. Trump and pals have generally also violated state crimes.
So stop worrying!
Cohen knows that, by the way, which explains why he doesn’t want a presidential pardon. The last thing he wants is a bunch of state crimes rolled out.
The situation is a little more complicated in NY because of NY’s double jeopardy (DJ) law.
Double jeopardy is from the 5th Amendment & prohibits a person from being prosecuted twice for the same crime. The Supreme Court, though, has said that the same crime can be tried in state court and federal court, because the jurisdictions are separate (so no DJ).
14/ New York law, however, has a quirk. In New York, once criminal proceedings against a person are initiated in federal court, that person can’t be brought to trial in New York for any crimes arising from the SAME FACTS.
There’s an easy way around NY’s quirky double jeopardy law—the prosecutors make sure they save out some state crimes that arise under different facts. For example, crimes committed in Cohen’s taxi business arise from different facts from the payment to Stormy Daniels.
The NY AG is taking steps to change NY’s law to get rid of the quirks. This is partly to make things easier on the prosecutors—and mostly to guard against more of Trump’s political pardons (Arapio, Scooter Libby, etc.)
If Trump does try pardons, he’ll create chaos and drama. He’ll unleash a political firestorm. But he can’t win. That’s why he’s not doing pardoning himself or his co-conspirators.
Will he try at some point? Probably. But it will create a political firestorm. I think there are more important things to worry about.
