I WON THIS ELECTION, BY A LOT!
8:18 AM Nov 7, 2020
Official sources may not have called the race when this was Tweeted
“Two years ago, President Donald Trump tweeted that he has ‘the absolute right to PARDON myself,’ but the answer still remains unknown… ‘Anyone who says that there’s a clear answer is wrong, or they’re being an advocate, and they think that if they say that it’s clear, and it’s obvious, that that’ll make their position more persuasive,’ Brian Kalt, author and law professor at Michigan State University, said in an interview.
“Article II, Section 2 of the Constitution allows the president to ‘grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.’ Pardon power is one of the few executive decisions a president can make without Congress’ approval. Congress has the right to declare war and to approve or disapprove of presidential appointments.” NationalInterest.com, July 15th.
As the major networks called the election for Joe Biden on November 7th, President Trump was on the golf course. Most Republican officials accepted results, many suggesting that a Trump concession would go a long way to help reunite the nation. Diehard Trump supporters, including Lindsey Graham and Ted Cruz, suggested that the election was not over, pending litigation and recounts. Officially, they are correct, and the muted Trump response was a commitment to pursue litigation to assure that the election reflected the will of the people. The President only seems to dig in his heels. Trump purportedly stated, “I could care less” when he got the news that the race was called. China’s People’s Daily responded to Trump’s 11/7 tweet above with a laughter-to-tears emoji and a “HaHa” responsive tweet.
The television/social media talk rapidly shifted back to the big “pardon” question, with a President who has used that constitutional power to forgive convicted felons who committed felonies in support of Trump himself. “President Donald Trump has used his pardon power sparingly, but overwhelmingly to benefit his friends and to protect his own interests. Former George W. Bush Administration official Jack Goldsmith recently analyzed Trump's pardons for Lawfare and concluded that ‘no president in American history comes close to matching Trump's systematically self-serving use of the pardon power.’” Elle Honig for CNN.com, July 16th.
The Mueller Report, which rested on the principle that a sitting president cannot be indicted, accordingly refused to level criminal charges against the President in connection with his quid pro quo solicitation of the President of Ukraine to find direct on Hunter and Joe Biden. But those allegations are ripe for prosecution, Senate “trial” notwithstanding. Likewise, the investigations by the Internal Revenue Service and other federal agencies (over possible fraud in connection with Trump loan applications to federally insured banks) could easily produce criminal accusations against Donald Trump for activities before and during the Trump presidency. There is absolutely no question that the President faces genuine risks of federal criminal prosecution.
Donald Trump could resign at some time during the balance of his term in office, at which point Mike Pence would become the President with the power to pardon Donald Trump. From a legal perspective, that move would make a pardon exceptionally difficult to challenge. However, once Trump resigns, that would simply confirm the notion that even Donald Trump believes he lost the election.
In Trump’s mind, there has to be a belief that the 6-3 conservative Supreme Court, which includes three right-wing justices Trump appointed, that if they do not reject outright the results of the election, an unlikely possibility, they will at a minimum support any form of pardon, from Trump himself or Pence, that will relieve Trump of any actual or potential criminal liability under federal law. Even if effective, such a pardon would not absolve the President from any income tax assessment (unpaid taxes, fines and interest) that the IRS might impose. The President would have the same right as any other American to contest such assessments, but there would be no absolution.
Likewise, the constitutional presidential pardon power does not extend to violations of state laws, where the relevant pardoning power rests with the relevant governor. Trump is under active civil and criminal investigation under New York statutes, including the possibility of a fraudulent loan application in which there may have been a material and knowing overstatement of collateral value.
Finally, we can probably expect a pardon to members of Donald Trump’s own family who may have been directly involved in many of the purportedly illegal activities that also involved the President. Rudy Giuliani may be on a short list for similar pardons. Whatever happens, it won’t be pretty. “In 2001, former President Bill Clinton pardoned his own brother, Roger, who was convicted for cocaine possession in Arkansas… Clinton pardoned about 450 people, including a Democratic Party donor, Marc Rich, who fled the country because of tax evasion charges.” Reuters, November 8th. These pardons did not, however, involve matters that could have implicated the president. Does that make a difference?
People have not even considered the possibility of a Biden pardon of Trump (and perhaps his family) as a gesture to heal the country. In this crazy and pandemic infused time, anything is possible. We must all remember that Donald Trump, even in a loss by a more than approximately 4 million votes, still garnered over 70 million votes, which exceeds the number of ballots cast for any other prior successful US president in history. Is his resistance show… or no?
I’m Peter Dekom, and now the really tough jobs begin: reuniting the nation and finding a path to economy and political recovery.
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