Trump's presidential pardons are an abuse of power, but we have ways to fight them

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Teri Kanefield, Opinion contributor
·5 min read
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There’s no doubt that President Donald Trump’s pardon of Michael Flynn was an abuse of power. The chronology makes clear that Flynn committed a crime for the personal benefit of the president, who later pardoned him for that very crime. Now Trump, egged on by conservative supporters like Sean Hannity, reportedly is discussing pardons for himself, his family, Rudy Giuliani and who knows who else.

The question is, what can we do about it?

The Flynn timeline is damning: Trump named Flynn as his national security adviser on Nov. 18, 2016. On Dec. 29, President Barack Obama unveiled sanctions against Russia for election-related hacking. On the same day, after consulting with a “senior official of the Presidential Transition Team, who was with other senior members of the Transition Team at Trump’s Mar-a-Lago resort,” Flynn called Russian Ambassador Sergey Kislyak and urged Russia not to react to the sanctions.

Trump and his team issued seven statements in January 2017 denying any contact between them and Russia, including specific denials that Flynn discussed sanctions with Kislyak. On Jan. 24, 2017, Flynn lied to the FBI about that conversation. On Nov. 30, 2017, he pleaded guilty to lying about it. And in the months between the lie and the guilty plea, Trump’s lawyer secretly floated the prospect of a pardon for Flynn. That’s effectively witness tampering and obstructing justice.

Legal and constitutional remedies

If a president is able to pardon people who commit crimes on his behalf — a clear example of self-dealing — there is only the subtlest difference if a president directs a person to commit a crime and then pardons that crime. The implications of this are chilling. In fact, Trump's public lies and misleading claims in January 2017 (for instance, that he'd had no contacts or deals in the works with Russia) act as signals to those around him about what they were supposed to say. In 2019 testimony to Congress, Michael Cohen, Trump’s former personal attorney, said this is exactly how Trump lets the people in his orbit know which lies he wants them to tell.

The Constitution offers two remedies for a president who uses his office for self-dealing. Congress can impeach and remove, or voters can oust that president from office.

President Donald Trump on Nov. 13, 2020, in Washington, D.C.
President Donald Trump on Nov. 13, 2020, in Washington, D.C.

Beyond that, the pardon can be challenged in court as self-dealing, corrupt, and therefore illegal. The judge in the Flynn case, Emmet Sullivan, could be asked to reject the Flynn pardon and continue with whatever sentencing he had planned. If the judge were to reject the pardon on the grounds that it was corrupt and therefore invalid, Flynn and his lawyers would no doubt file an appeal asking the appellate court to decide whether a corrupt pardon is valid. I am confident that a court would conclude the pardon power does not include the ability to use the pardon to reward those who commit crimes on the president’s behalf.

Carter, Obama used it right: Trump's pardons are troubling, but presidential pardon power is absolutely essential

Another option would be criminal prosecution. If further investigation confirms that the pardon was offered in exchange for Flynn’s silence — which would be a crime — charges could be filed against anyone involved in a pay-for-pardon scheme (for Flynn or anyone else). The fact that Trump has a legal right to pardon people does not mean he can exercise his right in the commission of a crime. I have a legal right to walk into a bank, but that doesn’t give me the right to rob the bank.

Scrutinize self-serving pardons

House Democrats have introduced a bill designed to make it harder for future presidents to self-deal. One goal is to “prevent abuse of the pardon power,” by requiring the Justice Department and White House to provide materials to Congress concerning any self-serving presidential pardon or commutation in cases involving the president, his or her relatives, or associates. The bill clarifies that the president and vice president are “public officials” and pardons are “official acts” and “things of value” for purposes of the federal bribery statute. It also would prohibit self-pardon.

In effect, this legislation codifies the principle that a president cannot use the powers of his office corruptly. It reflects the likely ways a court would rule on the extent of the pardon power and makes explicit in law what we know about the limits of presidential power.

Get-out-of-jail-free card: What to do about that pardon Trump will grant himself

Trump has long talked of pardoning himself and family members. He even insisted that he has the “absolute right" to pardon himself, which would simply takes the middleman out of the transaction. Instead of pardoning people who commit crimes on his behalf, he could simply commit the crimes himself — then pardon himself. Brace yourself for what’s likely coming next: A flurry of pardons for Trump’s family members, associates — and even himself.

Assuming that more corrupt pardons are on the way, legal challenges will follow. As for a self-pardon, I expect the challenges to assert that self-pardon violates a president’s fiduciary duties and — as Fordham law professors Jed Shugerman and Ethan Leib argue — that it violates the Constitution's presidential oath to "faithfully execute" the office.

If (when?) Trump tries to pardon himself, he'll certainly have to defend it in court — and he will lose.

Teri Kanefield is an author and a graduate of the University of California Berkeley School of Law. For 12 years, she maintained an appellate law practice in California. Follow her on Twitter: @Teri_Kanefield

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This article originally appeared on USA TODAY: Trump pardons are self-dealing abuses of power that courts won't uphold