Bill Clinton presided over eight years of relative peace, seldom-matched prosperity, and good fiscal health. Yet, he is chiefly remembered for the ways in which he diminished the office of the presidency: a draft-dodging commander in chief, an unembarrassed public liar, a serial abuser of vulnerable women, a recipient of foreign help in an election campaign, and a purveyor of charitable fraud.
President Trump was long a big contributor to the Clintons’ campaigns and proudly hosted Bill and Hillary at his third wedding. For five years now, Trump has pretended to loathe the Clintons, while he imitates their many vices, without their compensating virtues of intelligence, education, and hard work.
When Trump’s misconduct is brought to some of his supporters’ attention, they tend to bleat “But the Clintons …” Bill defined deviancy down, in Patrick Moynihan’s phrase, but many sensible people never voted for either Bill, Hillary, or Trump. Indeed, another commonality between these near-baby boomers is that none won a majority of the popular vote.
Now, at the ragged end of the Trump administration, its awkward symmetry with what was described as the “low dishonest decade” of the 1990s appears complete, with yet another alleged sale of pardons.
The alleged sale of pardons or clemencies for campaign contributions, or donations to a vanity library on behalf of a fugitive from justice, or political endorsements from sympathizers with a domestic terrorist group, is criminal bribery. It is as wrong as a football bat. The Clintons, unfortunately, got away with it. Trump ought not be allowed to do so.
It is further proposed that Trump “prospectively” pardon his children, as well as his lawyer, Rudy Giuliani. The pardon power is broad and often described as plenary. But to be operative, a pardon should be for a specific crime or at least a set of facts.
President Gerald Ford’s pardon of his predecessor Richard Nixon was an act of statesmanship. While his proclamation stated that he pardoned Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974,” Ford’s proclamation began by discussing the House Judiciary Committee’s investigation of the Watergate burglary.
That pardon is reasonably read as pertaining, and in its drafting should have been specifically limited to, the crimes alleged by the judiciary committee, most (although not all) of which related to the break-in and cover-up. Presumably, if Ford had subsequently found bodies buried in a crawl space in the White House basement, his pardon of Nixon would not have covered that.
Ford likely recognized that he had erred in the wording, if not the magnanimous act, of his pardon. He ever afterward carried a citation from Burdick v. United States in his wallet, which stated that the acceptance of a pardon carries an imputation of guilt.
If they are to be honored by the federal courts, Trump’s pardons should spell out exactly what crimes were committed and admitted to by his children. This is important because congressional Republicans and the Justice Department were often willfully blind in their oversight and investigation of this administration. We do not yet know all of what the Trumps may have done.
Presumably, Giuliani would be disbarred upon his acceptance of a pardon. An officer of the court cannot admittedly commit a serious crime and yet continue to practice law. Bill Clinton, for example, had to surrender his law license as a consequence of his perjury in the Paula Jones deposition and his false grand jury testimony.
The worst proposal floated is the idea that Trump may also efficaciously pardon himself.
No king or queen of England pardoned themselves, not even Charles I before he was beheaded by Oliver Cromwell’s Parliamentarians in 1649. The Founders and Framers further limited our head of state’s powers by providing for impeachment, which, upon conviction, bars a disgraced president from “any Office of honor, Trust or Profit under the United States” and leaves him “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The Constitution specifically provides that the pardon power does not extend to impeachment. Nothing the Federalist Papers (Numbers 69 and 74), which advocated for the Constitution’s ratification, indicates that Alexander Hamilton, for example, believed a president could pardon himself.
If an impeached president could pardon himself and resign before conviction by the Senate, he would be available to run for office again and be immune from prosecution as a private citizen in the meantime. This tortured reading of the Constitution would render Congress’s impeachment power superfluous, which runs against the canons of statutory construction.
Beyond that narrow legal point, presidential self-pardons make no sense in a mature republic. It could become the practice of bad presidents to commit crimes blithely, and then simply pardon themselves on the eve of their successor’s inauguration. Real conservatives, pessimists by disposition, or at least clear-eyed observers of frail human nature, intuitively understand this risk. Die-hard Trump supporters who giggle at the idea of “owning the libs” via a Trump self-pardon should imagine how a politician of the hard-Left might take advantage of such a legal lacuna.
Woolly theories of unitary executive power gained ground after the nadir of presidency post-Watergate. To use another phrase that first gained purchase in the 1970s, proposals of presidential family and self-pardons shows that such bad ideas have finally jumped the shark.
The members of Congress who are now “leaders” of the national GOP will not state the obvious: the president lost his reelection campaign and should concede already; he ought not give some blanket pardon to his children, and he cannot pardon himself. They fail to speak up only for child-like fear of a juvenile tweet by Trump, who might give them a mean nickname like a schoolyard bully.
They are as bad as, or worse than, Democrats who ignored or excused every excess or sin of Bill and Hillary Clinton for a quarter-century. Their lack of character and seriousness bodes ill for Republicans’ return to power, much less responsibility.
Kevin Carroll served as senior counselor to the secretary of homeland security (2017-18) and the chairman of the House Homeland Security Committee (2011-13), as well as a CIA and Army officer. He is a contributor to the Washington Examiner’s Beltway Confidential blog.
