December 22, 2020

The Trump presidency is fizzling out, but it has one more big impact to make. An impact that might change a few lives for the better, including, potentially, the President’s.

A presidency that has reliably done what sweet-smelling people in big American cities believed could not be done, is about to do it again. Trump is going to go out with a pardon bang. There won’t be enough room in heaven for all the people he’s going to forgive.

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First, as he has already demonstrated with the pardoning of Michael Flynn, his dishonest former national security adviser: when his people need help they are going to get it. CNN reported recently that “hundreds of his allies — including some of his closest business associates and many high-profile criminals — are ramping up their efforts to squeeze out the final ounces of his presidential power”.

There is, apparently, a White House spreadsheet keeping track of requests. The President is energised and engaged in this enterprise. He has told advisors not to share any information with Biden’s team that could be used against him in future.

Does this matter? Not much. After all, previous presidents have behaved in a manner that Donald Trump would find hard to match. President Andrew Johnson pardoned, in 1868, all soldiers who fought for the Confederacy during the Civil War. In the 70s, Peter Yarrow of the folk rock band Peter Paul and Mary had been convicted of indecent behaviour with a girl of 14. Jimmy Carter pardoned him.

Bill Clinton pardoned his half-brother Roger who had been in prison for selling cocaine. Roger repaid Bill rather poorly: less than a month later, he was arrested for driving drunk and disturbing the peace.

No, the problem here is not the badly behaved outsiders. It’s the administration folk. The convention is that they are not treated leniently by the outgoing president, because of the risk that the pardons pervert the entire system of law. Someone working for the president could act criminally in pursuit of the White House agenda so long as the president approved.

An unlawful president could encourage or force his people to commit crimes with the firm promise of pardon. As one commentator put it: “That creates a system of rule by decree. Laws would be completely at the discretion of the president — a recipe for autocracy.”

There is an example of this under Trump: he is alleged to have told Department of Homeland Security officials to shut down the Mexican border entirely to migrants. If they got in legal trouble, he would pardon them. He denies it and so do they; but the risks are obvious.

Even more obvious is the risk that the President takes a truly nuclear option and pardons himself.

For prosecutors, The Donald is a target-rich environment. Huge! So many irons in so many fires! So much money! So little propriety! “If he is on-site for your big day, he will likely stop in & congratulate the happy couple.” With those words the Bedminster Golf Club owned by President Trump tried in 2017 to drum up wedding business. There is no word on whether the ploy worked. It is possible, I suppose, to imagine that it did not.

But either way, was it ok? This is a business owned by the President, using his public role to benefit himself financially.

Or what about the visit of Saudi Crown Prince Mohammed bin Salman to New York in 2018, during which his entourage stayed at the Trump hotel in Manhattan? They spent enough to put the property, which had been loss making, into the black for the financial quarter of the visit. Perhaps there was nowhere else to stay. But what about the 67 trademarks that have been granted to the Trump Organization from foreign governments during his presidency? China alone has granted 46 of them — more than any other country.

Or the scrapping of a bipartisan plan to relocate the FBI out of its prime central Washington location to the suburbs? The Bureau currently lives blocks away from the President’s D.C. hotel; vacating the building might have allowed a competitor hotel to move in. Hotel developers had bid on the site. President Trump was personally involved in a meeting about the building location just weeks before the announcement that it wouldn’t be relocated.

In September this year a non-profit group called Citizens for Responsibility and Ethics in Washington set out these and other conflicts of interest and called them corruption. They put a number on it: 3403 such breaches of conventional norms during the presidency up to that point.

And of course, we have not considered his taxes (or lack of them) or the pay-off allegedly made to a porn star before the 2016 election that, if it had been made in pursuit of winning that election, was an expense he ought to have reported.

By the way, the tax liability is hugely important and quite simple. Mr Trump appears to have claimed in the past that certain properties he owned were far more valuable when using them as collateral for loans than when valuing them for tax purposes. He has firmly denied any wrongdoing of any kind, but the way he ran his businesses creates a suspicion of fraud on a scale that would be seriously criminal if it were true.

Here we get to the guts of the pardon issue. The only pardon that really matters is the pardon Mr Trump issues to himself and his immediate family. Nobody knows if this is legal. Nobody knows if it’s possible. But plenty think he might try it.

And if he does? Yes, there are all manner of precedents that risk being set. A nation that simply ignores — or allows to be ignored — the suggestion of huge abuse of power by its commander-in-chief does not exactly radiate civic health. This is plainly in a different league to Bill’s let-off for Roger Clinton.

But there again, perhaps it would allow something useful to happen. Perhaps a pardon would triage the whole case against Mr Trump. People could get over the Bedminster Golf Course Wedding Offer — and focus instead on the things that could not be pardoned.

Because state crimes (not being the bailiwick of the Federal government) cannot be pardoned by any president, and the tax fraud case, if it were ever brought, would come in New York State. Other states could follow suit. Mr Trump (again I stress he denies all wrongdoing) would be in deep legal trouble — without all the fuss about the Saudis paying money to his hotels getting in the way. His self-pardon would do no more than clear the barnacles off the boat.

His advisers may feel that complexity is his friend as it has been during his whole business life. He will be chased by all manner of worthy seekers after justice. But will he ever be caught? I wouldn’t bet on it.