Trump Doesn't Need to Pardon Himself

I've received countless messages, as I did during Trump's first term, about whether Trump can or will pardon himself. He won't need to if the Attorney General gives him a Get Out of Jail Free card

Greetings!

With the reelection of Trump to a second term, I wanted to talk about something that came up repeatedly during his first term: the issue of presidential self-pardons.

We have long discussed the concept of corrupt pardons and whether they could be successfully challenged in court, or used as evidence of obstruction of justice. You’ll recall during his first term, Trump pardoned multiple witnesses against him in the Mueller investigation including Paul Manafort, Mike Flynn, and Roger Stone.

Throughout the Mueller investigation, Trump dangled pardons to his co-conspirators publicly, and many believed that to be an element of obstruction of justice. Indeed, Robert Mueller included the dangling of pardons in Volume II of his final report to show Trump’s underlying intent to obstruct justice. Trump offered a pardon to Michael Cohen, and when Cohen switched lawyers, Trump simply had him arrested and thrown in prison. He offered Manafort a pardon, who then withdrew his guilty plea. Manafort was ultimately convicted, but Trump pardoned those crimes away and he now walks free.

So why didn’t Trump pardon himself for the ten instances of obstruction of justice that Mueller testified he could be charged with as soon as he left office? Surely, with his bought-and-paid-for Supreme Court justices, they’d rule in his favor if anyone claimed the self-pardon was corrupt, so why not?

Because Attorney General Bill Barr wrote a memo with his deputy (Rod Rosenstein), principal assistant deputy (O’Callaghan), and the Office of Legal Counsel stating that Trump did not obstruct justice. This memo was written the weekend immediately after Mueller turned in his report to Bill Barr. It was written even before Barr issued his four page summary of Mueller’s “findings” - which wildly mischaracterized his report by saying it “exonerated” Donald Trump - and a lot of the media (including Ken Dilanian at MSNBC) fell for it.

This Barr memo stated that even if Trump were not the sitting president, the DoJ would not charge him with obstruction of justice because there was no underlying crime to obstruct. More plainly, he said “since Trump did not conspire with Russia to rig the 2020 election, he can’t have obstructed an investigation into a conspiracy with Russia.” (I’m paraphrasing.)

Of course, that’s absolute nonsense. You don’t have to have been successful at your crime to obstruct an investigation into it. But that memo got Trump off the hook. It’s likely why the Garland DoJ didn’t charge Trump with obstruction. Had the DC US Attorney done so (who didn’t get there until November of 2021 because five insurrectionist republican senators blocked his appointment), Trump would have simply filed a motion to dismiss the charges based on that memo from Barr.

You might say “why would the court buy Barr’s reasoning if it was flawed?” According to the experts I’ve spoken to, it’s not so much about whether Barr was right or wrong, its more about the fact that the Attorney General declined to bring charges - and that’s impossible to overcome - regardless of the reasons. The Attorney General is extremely powerful - even when they’re wrong - and the courts would have dismissed the obstruction charges immediately, based on Barr’s declination to charge Trump.

But let’s pretend the lower courts didn’t dismiss the charges. The case would have eventually made its way to the Supreme Court, and given their eventual position on presidential immunity, does anyone really believe they wouldn’t have dismissed the case?

That brings us to today, and whether Trump will pardon himself for his insurrection (provided Biden doesn’t pardon him - which I’m adamantly against, by the way).

Why pardon himself when he can simply have Pam Bondi write up a memo saying she considered resuming the case against Donald Trump and has decided that even if he weren’t the sitting president, that the charges are not valid, so she declines to bring the case. Maybe she’ll say it’s because Jack Smith failed to show a link between Trump and the Mob. Maybe she’ll say the charges violate his free speech (which is probably why a 2383 charge for inciting an insurrection wasn’t used). Perhaps she’ll conclude that the 1512c2 charges are not appropriate because of the Supreme Court’s ruling in the Fischer case - and without those, the entire case falls apart. All of those reasons are just as flawed as Barr’s reasoning for not bringing Obstruction charges, but that doesn’t matter. Her discretion as Attorney General is as powerful as a pardon.

Also, we won’t ever see that memo, because they’ll hide it with deliberative process privilege. We almost didn’t see the Barr memo, but he made a mistake with his and a judge released parts of it. Bondi wouldn’t make the same mistake.

That’s why we didn’t get Mueller obstruction charges. And it’s why - even though Jack Smith took great pains to dismiss the coup charges without prejudice - there will never be a prosecution of Trump for January 6th. No self pardon needed.

As I said in 2018, and as I’ve been saying ever since - that is why no one should rely on DoJ or an AG to “save us.” Only we could have saved ourselves by electing Harris. I know it’s frustrating that we bury ourselves in memos and paper, but none of that matters now. The Supreme Court will protect oligarchs because the Supreme Court is owned and occupied by oligarchs.

Until we fix that, he will always be above the law.

~AG