This Saturday, President Donald J. Trump is scheduled to participate in the commissioning of the USS Gerald Ford, the US Navy’s newest aircraft carrier. It’s an occasion to remember President Ford, who was a complicated President, one who tried to steer this nation past the tumult of Watergate and related crimes. Historians differ on whether Ford’s pardoning of his predecessor, President Nixon, was a mistake, but it’s a common view that it tarnished Ford’s legacy and damaged any chance he had for another term.
The timing for President Trump is, to say the least, ironic.
Talk of pardons is in the air. Senator Mark Warner has warned against them. President Trump’s lawyer, Jay Sekulow, has been asked about it. It is time to talk about the possibility that President Trump will utilize his expansive pardon power to save the people around him — including his son and son-in-law — well before any criminal charges can be filed, if they are merited.
It is true that President Trump and his legal team have a variety of potential responses to growing accusations of collusion during the campaign or other possible crimes related to financial and business dealings — including allowing the investigation to progress and run its course. But the attacks on investigators, special prosecutor Robert Mueller, and even the firing of former FBI Director James Comey suggest that that isn’t the Trump team’s strategy.
In addition — after last week’s bombshell and its aftermath that Donald Trump Jr., his brother-in-law Jared Kushner, and then-campaign manager Paul Manafort met with a group of Russians they thought had information from the Russian government that would be damaging to Hillary Clinton — President Trump’s options are narrowing. This story is as close to a smoking gun as many of us could have imagined.
It is hard to imagine that pardons of those closest to the President, including family members, haven’t been part of the Trump team’s discussions of legal strategy; indeed, it would be bad lawyering if they had not been. As a nation, we have to brace for this possibility. But it would also be wrong to view potential pardons as simply a debate amongst lawyers about how feasible and effective they would be. The political consequences for Donald Trump of pardoning the likes of Paul Manafort, Michael Flynn, or his own son and son-in-law to thwart any potential criminal charges related to campaign collusion or financial dealings would be devastating — many members of Congress, not to mention the public at large, would be outraged. That’s hardly the best way to move his political agenda forward.
At this stage, we do not know what evidence Mueller has or the specific crimes he might be able to charge, if any. But President Trump doesn’t need to wait for Mueller to finish his investigation. The President is permitted to pardon someone at any stage — before an investigation is complete or before any specific indictment is brought. But as President Ford could attest, giving out “get out of jail free” cards is a harsh business that can result in staff resignations and revolt by both houses of Congress, for starters. Ford pardoned Richard Nixon to try to move the country past Watergate; instead, that exercise of presidential power came to define his own tenure in the office.
But most importantly, if President Trump were to pardon his team for its involvement with Russia, if any legal wrongdoing were proven, it would irrevocably harm our national and homeland security. We are the United States, and our values — including democratic norms and objective elections — serve as a beacon to many who do not have such freedoms.
Any pardon would change that calculus because it would be empowering to our enemies and embarrassing and unnerving to our allies. To embrace a foreign hostile power purporting to assist your side in an election emboldens other nations to do the same: the Chinese, the Iranians, even our own allies who may favor one side over the other.
Any pardon would serve as a welcome mat and a “come hither” to other nations that this White House would protect them, and itself, in such dealings. And it could embolden them to seek favor with some candidates, and seek information about others, depending on the inclinations and policies of their country.
Donald Trump is already enabling Russia with his lack of action. He doesn’t even affirm the assessment by our intelligence agencies that Russia disrupted our elections; in statements, he still caveats the possibility that Russia did it with asides that it could have been others. He appears not to have challenged Russian President Vladimir Putin in any meaningful way when they met at the G20. States and localities have not been given any advice about how to protect their election systems going forward.
A pardon of anyone involved in his administration’s relationship with Russia would only add to this enabling, not just for Russia but for all nations. I do not know whether Donald Trump’s own party would respond meaningfully against any steps toward a pardon, but what is clear is that the pardon power doesn’t raise just a legal question. This is about our national security and our own willingness to defend its sovereignty against enemies and allies alike. Any pardon would tell the world we’re not even interested in the fight.