Another Trump innovation
Trump’s abuse of the pardon power is well known. But this analysis by Protect Democracy pinpoints three specific abuses that are unprecedented and provide a major threat in a Trump second term:
During the Trump presidency, we saw three types of henchmen pardons:
Self-protective pardons: Trump dangled pardons for associates implicated in Special Counsel Robert Mueller’s investigation into the Trump campaign’s contacts with Russia, notably former campaign manager Paul Manafort and his former National Security Advisor Michael Flynn, providing an incentive for them not to cooperate with the Mueller investigation into Trump and his 2016 campaign. Both were indicted, in Manafort’s case sentenced to years in jail, and later pardoned.
Pardons to reward illegal political activity that accrued to his benefit: Trump pardoned 2000 Mules filmmaker and vocal ally Dinesh D’Souza, who pled guilty to using straw donors to make illegal campaign donations to a Republican Senate candidate. Trump strategist Steve Bannon was charged with defrauding donors who gave money to build a border wall; Trump pardoned him before his trial began.
Pardons that license violence: Trump pardoned four Blackwater contractors convicted of massacring 17 Iraqi civilians, including two children, and two Army officers accused of war crimes in Afghanistan. Trump defended his leniency for war criminals with a social post mocking the military justice system: “We train our boys to be killing machines, then prosecute them when they kill!”
They note that Trump has also promised to pardon the January 6th insurrectionists. I would guess he’d do it on the very first day.
This isn’t just about these specific individuals. It’s a necessary corollary to Trump’s plans to dismantle the government and put the institutions of government to work to serve his personal and political interests. He has made it clear through actions and words that the people who help him do it will not be held liable and that includes the military and the police. Even during his first term he would tell people that he’d pardon them if they broke the law for him.
There are some guardrails but I wouldn’t count on them holding in Trump 2.0:
First, Congress enjoys the constitutional prerogative to conduct oversight of the pardon power and its potential abuse. Congress should pass legislation that strengthens its ability to do so, improving mechanisms for obtaining information related to presidential pardons during investigations — such as those included in the Abuse of Pardon Prevention Act.
Second, despite Trump’s claim that the president’s pardon power is “complete,” federal courts have long placed limits on that power when it threatens other constitutional provisions and principles — in cases dating back to the 19th century — and could be called upon to do so again.
Third, the Executive Branch itself also maintains a role in investigating and prosecuting potential criminal abuses of the pardon power. Pardons that may function as bribes or to obstruct justice in violation of federal criminal statutes have previously been the subject of Department of Justice investigations, and could again be in the future.
For some reason none of that comforts me.