I have been worried about this Trump pardoning business for a while.
Jed Handelsman Shugerman of Slate reassures me that even if Trump pardons Manafort, Kushner, and the whole crew, state attorney generals could still step in.
There are more and more signals that Donald Trump is exploring firing Robert Mueller and pardoning anyone and everyone in his circle. So what would happen next? The bottom line is that those moves would backfire spectacularly.
First, can Trump pardon himself? That’s surprisingly hard to answer. The constitutional text gives no answer, and the Constitutional Convention of 1787 debates aren’t particularly helpful. Some people cite the Latin phrase Nemo judex in causa sua (One can’t be a judge in his own case) as some kind of answer, but the pardon power is executive, not judicial, so a president isn’t formally a judge in his own case. Plus, we don’t live in Rome, even if the Latin sounds wicked smart. The bottom line is that the only significant barriers to self-pardons are politics (impeachment) and federalism (state powers).
Presidential pardons can’t apply to state prosecutions. That means state attorneys general, especially New York’s Eric Schneiderman, Washington, D.C.’s Karl Racine, and Delaware’s Matthew Denn should think about canceling their summer vacation plans. (Yes, Delaware. Go Google “quo warranto,” see this old post, or better yet continue reading.) And maybe they should open up some office space for Mueller and his A-Team when he inevitably gets fired for getting closer and closer to hard evidence of serious crimes.
The president cannot pardon people for state crimes. Even if Trump pardons, say, his son-in-law Jared Kushner, a state prosecutor can bring charges under state law anytime. Similarly, Trump can be prosecuted under state law. President Richard Nixon’s attorney general concluded in 1974 that a sitting president can’t be indicted, but there is no constitutional text or precedent for such a conclusion—and it was obviously an interpretation that benefited Nixon. I think this is an open question.
(click here to continue reading No matter whom he fires or pardons, Trump won’t be able to escape state attorneys general..)
Impeach!
I’m not sure this is entirely convincing: there will be speculation regarding pardons until it actually happens, and until then we won’t know what will transpire. I don’t know if I trust Eric Schneiderman and Matthew Dean yet, but at least there is a possibility that America won’t end when Mueller indicts the Trump clan, and Trump pardons everyone…