Pardoning himself

William Falk

This is the editor's letter in the current issue of The Week magazine.

Thanks to President Trump, we have a new version of the five stages of grief. Denial, anger, bargaining, and depression will now be followed by "pardoning." (Acceptance has been deleted as fake news.) The president took a brief break from trying to overturn the election results last week when he pardoned former national security adviser Michael Flynn, who pleaded guilty to lying to the FBI about his backdoor conversations with the Russians. In return for his loyalty and silence, Flynn — a paid foreign agent — was blessed with a blanket, pre-emptive pardon for any federal crime he may have committed. In coming weeks, Trump will probably make it rain pre-emptive pardons on allies suspected of shady activities in his service, including Don Jr. (who may have invoked the Fifth to avoid testifying in the Russia investigation), Eric, Ivanka, and Jared Kushner. Despite failing to deliver proof of massive election fraud, Rudy Giuliani has reportedly requested one, too. Will Trump then pardon himself? Can he?

Constitutional scholars differ on this question. Most think the former casino owner would be risking indictment and imprisonment if he gambled on a self-pardon standing up in the Supreme Court. There, textualists may debate what the Framers intended when they gave the president the expansive power to "grant" pardons — a transitive verb suggesting a recipient. But a common-sense way to look at it is this: If presidents know they can pardon themselves, they can spend four years embezzling funds, taking bribes, selling state secrets to foreign powers, stealing the White House china and silverware — and then simply wipe the slate clean on their last day in office. Is such unlimited royal privilege really the Framers' design? By defying all norms, this president has left us with a valuable legacy: He's shown us the many holes and vulnerabilities in our democratic system, and compelled us to ponder so many previously unimagined moral, legal, and constitutional questions.

This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.

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