6 Sep 2023 12:25 am
The downside of pardons for Trump
Herein lies the downside for President Trump in any pardons he might grant.
Should Congress or the Justice Department seek to determine whether the president or any of his associates acted criminally before or during Trump’s term as president, pardoned individuals would be limited in their ability to dodge questions by claiming their Fifth Amendment privilege. The broader the pardon, the narrower the Fifth Amendment protection.
Roger Stone, for example, after being pardoned for the crime of impeding a congressional investigation could not invoke the Fifth Amendment to avoid answering narrowly focused questions regarding this illegal activity.
His privilege would, however, remain with respect to other possible crimes, and he might even be able avoid answering questions about the lies he told Congress if his answers might help prosecutors prove him guilty of different crimes.
By contrast, the terms of Michael Flynn’s pardon render him unable to claim the Fifth Amendment in any proceedings exploring Russia’s involvement in the 2016 election. If Trump issued similarly broad or broader pardons to members of his family or closest allies, they too could be required to tell more of what they did and know.
Although truthful testimony might shame a witness or open Trump or others up to suits for civil damages, these considerations cannot support Fifth Amendment claims.
Also, with criminal prosecutions off the table, Congress or the Justice Department, perhaps acting through special counsel, might be more rather than less willing to explore the possible crimes and bad acts of Trump and his associates.
Even if illegal behavior were uncovered, the DOJ would not be in a situation where it felt it had to bring charges that might unacceptably exacerbate political divisions or result in trials where juries did not convict.
To a degree determined by the scope of Trump’s pardons, recipients could be required to flesh out details about crimes for which they had been pardoned, perhaps implicating others whose involvement had gone undetected. If they then lied to avoid shaming themselves or to protect others, they could be tried for that crime.
https://www.brookings.edu/articles/pres ... for-trump/
In the 1915 case of Burdick v. U.S., George Burdick refused a pre-emptive pardon issued by Woodrow Wilson because accepting it would have meant that he could not claim his Fifth Amendment privilege when called to give testimony relating to the pardoned crime before a grand jury.The broader the pardon, the narrower the Fifth Amendment protection.
Herein lies the downside for President Trump in any pardons he might grant.
Should Congress or the Justice Department seek to determine whether the president or any of his associates acted criminally before or during Trump’s term as president, pardoned individuals would be limited in their ability to dodge questions by claiming their Fifth Amendment privilege. The broader the pardon, the narrower the Fifth Amendment protection.
Roger Stone, for example, after being pardoned for the crime of impeding a congressional investigation could not invoke the Fifth Amendment to avoid answering narrowly focused questions regarding this illegal activity.
His privilege would, however, remain with respect to other possible crimes, and he might even be able avoid answering questions about the lies he told Congress if his answers might help prosecutors prove him guilty of different crimes.
By contrast, the terms of Michael Flynn’s pardon render him unable to claim the Fifth Amendment in any proceedings exploring Russia’s involvement in the 2016 election. If Trump issued similarly broad or broader pardons to members of his family or closest allies, they too could be required to tell more of what they did and know.
Although truthful testimony might shame a witness or open Trump or others up to suits for civil damages, these considerations cannot support Fifth Amendment claims.
Also, with criminal prosecutions off the table, Congress or the Justice Department, perhaps acting through special counsel, might be more rather than less willing to explore the possible crimes and bad acts of Trump and his associates.
Even if illegal behavior were uncovered, the DOJ would not be in a situation where it felt it had to bring charges that might unacceptably exacerbate political divisions or result in trials where juries did not convict.
To a degree determined by the scope of Trump’s pardons, recipients could be required to flesh out details about crimes for which they had been pardoned, perhaps implicating others whose involvement had gone undetected. If they then lied to avoid shaming themselves or to protect others, they could be tried for that crime.
https://www.brookings.edu/articles/pres ... for-trump/