If he really did pardon his aides, his family or himself to head off Robert Mueller’s inquiry, the move probably would be constitutional but ultimately self-defeating for the president.
In using his power to pardon potential witnesses against him, Trump probably would convert a weak criminal investigation into a full-fledged impeachment effort. In 1833, Chief Justice John Marshall upheld a presidential pardon by Andrew Jackson by saying that a pardon is “an act of grace” by a president. A pardon in these circumstances would not be viewed as an act of grace, but a gratuity from an isolated president.
.. Even Nixon did not stoop to a self-pardon, although he did research it.
.. Pardoning his associates at this stage would clearly have a tactical benefit, but the historical and political costs of that would be immense. The most obvious reason for issuing pardons now would not be to protect any of the key people from jail but to limit Mueller’s leverage over witnesses. Mueller has selected a team of prosecutorial heavies, some of whom are known for flipping witnesses and using pressure to secure their cooperation. A pardon removes that option and reinforces the ability of close associates to take a hard line with investigators.
.. the use of the pardon power to protect the president’s political allies and family members would be legitimately decried as an abuse. It would not, however, be unprecedented.
.. Jefferson wanted Bollman to testify against Burr for alleged treason in plotting with the British to create a new country out of territory in the Southwest and Mexico.
.. The most recent abuse of pardon power was by Clinton. He waited until his last day in office to pardon billionaire Marc Rich, generally considered one of the least worthy recipients of a pardon in history. Jimmy Carter denounced the abuse of the pardon power for Rich as “disgraceful” and attributed Clinton’s decision to “his large gifts.” Worse yet, on the same day, Clinton pardoned his half-brother, Roger Clinton, in an open abuse of pardon power to benefit his family.
.. Indeed, with pardons, witnesses could lose protections against self-incrimination and could more easily be forced to testify. New crimes such as perjury could fall outside of the pardon, and such a pardon would not protect against state charges.
.. The existing claims of criminal conduct on Trump’s part are relatively weak and speculative. To move from the legal to the political forum is to leave strategic high ground for a quagmire.
.. Tactical pardons are like burning bridges to slow an investigation. That has rarely stopped a determined foe. Indeed, it tends to encourage and swell the ranks of opponents.