As we approach “Pardon Palooza” on 19 January – the last day of the most corrupt administration to ever be housed in our government – many legal minds, such as myself, are contemplating the nature, durability and consequences of the White House’s decision to pardon 100 people.
Anyone paying attention to the hellish nightmare of the past four years has Vegas odds on who will be pardoned, and we can arguably take very educated guesses.
In my opinion, we will see pardons for everyone from Trump’s offspring to loyalist Cabinet members and advisers; sycophant lawmakers; individuals who planned, executed and participated in the 6 January insurrection; and – as icing on the proverbial cake – a self-pardon for the twice-impeached commander-in-chief now facing serious criminal and civil litigation for the remainder of his life.
The pardons we will no doubt see tomorrow will be the worst of the worst. We have already seen pardons for Michael Flynn and Roger Stone, among others, both of whom worked at the direction of and for Trump and lied on his behalf. This is precisely the antithesis of what the pardon power is meant to symbolize, but sadly, constitutionally, the pardon power remains very broad. It’s also largely untested both legislatively and in the US court system.
No doubt President-elect Joe Biden and his administration will be consumed with undoing every single thing Trump did from his first hour in office, from the minute they step into the White House.
Watch: Trump considers pardons during final day in office
What should happen — and conceivably will happen, given the unusual circumstances surrounding Trump’s final weeks in office — is that an independent justice team will review every single pardon issued by the 45th president during his entire term in office. The team, which would be apolitical, would look for fraud, bribery and corruption. Invariably, supporting facts will materialize and the pardons should then be litigated. They simply must be litigated.
In my opinion, we were unnecessarily hamstrung by a memo (or a Post-It note, as I call it) from the Department of Justice, stating a sitting president cannot be indicted. Now, we have one who is issuing pardons which may well have been outright purchased by individuals. These are potentially people who would never get near a pardon in any other just and democratic administration. Eventually, this bulk pardon litigation will be appealed to the Supreme Court, which would have to grant certiorari on such a precedent-setting topic. I am absolutely certain that will happen because I am absolutely certain Trump will pardon himself. Why the heck not? He has broken with every other piece of normal protocol on the daily since he set foot in the Oval Office.
There are many in the legal world who have reportedly warned Trump against self-pardoning. These are the very same people who have supported, enabled and led the way for his treason and corruption all along, but who now, laughably, believe a self-pardon will “taint” his legacy. Perhaps he will listen to them; more likely he will not.
In any event, we will see new case law over these actions, new legislation and possibly one day a Constitutional amendment reining-in the powers of the presidency and further solidifying our broken checks and balances. Those checks and balances failed miserably over the past four years and have left this country’s democracy on the brink of total annihilation. It’s become very clear that they are not enough.
Watch: Donald Trump in profile