I have been thinking about the consequences of Trump granting either himself or others pardons. It strikes me as a bad tactical move on his part. If someone is covered by a pardon, then nothing he/she says can be used against him in court. He has immunity. So…
A federal prosecutor in DC decides to investigate possible crimes in the white house. Could be anyone. The secretary who typed the pardons. An assistant somewhere. Doesn’t matter. Alternatively, Congress can launch an investigation knowing that the Justice Dept will enforce a subpoena. An investigation has been launched. Trump is a private citizen. As part of the investigation Trump can be called as a witness AND compelled to testify honestly. He can be asked about anything related to the investigation. And perjury or contempt of court for not testifying wouldn’t be covered by the pardon since those actions hadn’t occurred yet. Trump would be in a box where he would have to testify honestly-or go to jail. OTOH, if he doesn’t get a pardon he can just plead the fifth. Of course one can substitute any name here for Trump.
Of course the goal here isn’t to prosecute Trump, with a pardon that wouldn’t be possible. Nor is it to prosecute some poor assistant. The goal is to get the truth out on the record. A possible consequence might be that Trump would hang himself, but that isn’t really the goal. Getting the truth out on the record is the goal.
Would any lawyers care to comment? Is my reasoning flawed?
He can still claim executive privilege…and he would…on everything. And he’d use that to stifle others from talking. He has already done this. He’d keep the courts tied in knots for so long he’d be dead of extreme old age before they sorted it out.
While you can certainly prosecute an ex-president you can’t do it for things they did as part of their job. In practice this gives the ex-president a wide-latitude.
Consider what protecting “mere” police get for the same reason making them incredibly hard to prosecute for things they did while in uniform. Take that x1000.
It is true that one reason to not give a pardon is that the person pardoned can no longer claim 5th amendment protection against self-incrimination on that subject. They’ve been pardoned, they can’t go to jail, so they can’t incriminate themself so they can be compelled to talk.
Can someone face consequences for having a faulty memory? I feel like I have seen people under tough question develop sudden onset amnesia and I can’t recall anyone getting thrown in jail for that. So I am picturing something like:
Investigator: Under penalty of perjury for which you will go to jail forever answer this question like your life depends on it. Did you help the President shred documents?
Trump lackey: I don’t recall.
Investigator: There is video evidence and testimony from multiple witnesses saying you were at the White House and were escorted into the Oval Office at exactly this time, is that correct?
Trump lackey: I can’t remember. I’m not sure I was there that day.
Investigator: We also have sworn witness testimony saying that when you came out of the Oval Office there was shredded paper in your hair and all over your suit. Video evidence also supports this.
Trump lackey: I have no recollection of that.
And so on…
All good points.
I hadn’t realized that ex-Presidents can claim executive privilege.
I will point out that courts deal with cases of bad memory all the time. Surely there are rules and procedures for that. But I am not a lawyer.
You will also get assertions of the Fifth Amendment based on the possibility of a state prosecution. Not everything could be a state crime, but a whole lot of stuff could me. Courts will be reluctant to punish a Fifth Amendment claim in any grey area.
There’s a flaw in your plan - he won’t be the executive anymore so he will have no claims of executive privilege. Biden would hold the power of executive privilege and only Biden could assert it (or, arguably, certain persons who work for him and are asserting it on his behalf). If Trump were asked about things that were classified, he could likely assert that he won’t disclose it for national security reasons but: (1) Biden could declassify the information as he chose, and (2) even if the testimony would require disclosure of classified information, there are procedures by which prosecutors can elicit classified testimony.
This i just patently untrue. There is some chance that Nixon would have been prosecuted for his actions as president but for the pardon Ford granted him.
This is a non-sequiter. I think you are saying that police get the benefit of qualified immunity for their official actions. But it is only a shield for policy against lawsuits by private actors. It has no effect on prosecutions by the government at any level.
Do you mean can a person face consequences for falsely asserting that they don’t remember information when they do? Yes. They would have perjured themselves when they said they didn’t remember and they could go to jail for that. The difficulty is proving that they are faking their faulty memory but it’s not impossible.
This is absolutely correct but there might be quite a few interesting areas of interrogation that involve no plausible potential claims of state prosecution. Bribery of federal government officials is illegal. If that bribery took place in DC, I don’t think that there is any state authority that could prosecute the crime (although a real analysis would be pretty fact-specific), so I think the pardoned person could be compelled to testify about the bribery.
I defy you to find any support for your assertion that a president can’t be prosecuted for his crimes when he is in office. The biggest barrier to prosecuting a sitting president are a couple of flimsymemos from the Department of Justice that basically say, “we can’t prosecute a sitting president because we don’t want to.” But all references in those memos are explicitly to a “sitting president,” “while he is in office,” or similar. There are some things that aren’t crimes when the president does it (like disclosing top secret information to our enemies) but there are many other actions that are crimes for which a former president can be prosecuted. I think you are trying to say that he can’t be prosecuted for his official actions or something like that but if doing it was a crime, he can be prosecuted.
I don’t feel like digging up cites but I believe neither Nixon (following his resignation) or Reagan (in the Iran-Contra hearings) were able to to use executive privilege claims to avoid providing documents or testimony in subsequent investigations. Executive privilege is rooted in the idea that separation of powers prohibits other branches of government from interfering with the executive function. Once the person is no longer president, there is no interference with executive function to protect with executive privilege.
I know what qualified immunity is. In fact, I had to explain it to you above. I will say this as clearly as I can: There is no such thing as qualified immunity from criminal prosecution.
You did not say a president could never be prosecuted but you did say:
This is wrong. You can prosecute an ex-president even for crimes he did as part of his job. If you believe otherwise, please provide a cite.
Here’s teh way I see it:
Trump would be in a “box” made of wet tissue paper where if he chose to not testify honestly, somebody could charge him with a new crime of perjury in this instance, and would then have to prove that in a new trial on the new charge. Only after that could there be any hope of a guilty verdict, much less a penalty phase that might, just might, include detention.
Proving that would mean having independent corroborating evidence that T’s testimony was BS. If you already had that independend corroborating evidence, T’s testimony would not be necessary in the first case. You could already prove whatever it was T was testifying about without involving him & making a circus of whoever you’re really prosecuting.
Further, have you ever read a “paragraph” of Trump speaking? It’s almost impossible to determine what he even said, much less whether any of it is true. It’s not quite word salad, but it’s close.
One issue with the OP’s assertions is that a pardon does not exclude conviction, and is not immunity, just the sentence is set aside, the person can still get a criminal record if convicted or still carries one if they had one before the pardon.
They can to some extent. But the exact limits on when a former President can invoke executive privilege have not been clearly established. This is especially true in a situation where the incumbent President disputes the former President’s claim of executive privilege.
If I was a lawyer, I would not want to be basing a legal strategy around the hope that future judicial decisions will uphold the basic foundation of my case. Lawyers prefer to base their cases on established laws.