On Trump’s Recent Pardon
Posted on August 26, 2017
There are two main recourses to unjust Presidential pardons:
1. Impeachment of the President for failing to faithfully uphold the law.
2. Civil suits against the pardonee.
Sheriff Arpaio can and should be sued by his victims. The facts of his crimes have already been been adjudicated, so the only real defenses will be Arpaio’s efforts to deprecate the value of the damages done to his victims.
However Trump’s real goal is to immunize his hench people who otherwise might testify against him in return for prosecutorial leniency. This is harder to respond to.
1. In most cases there are no relevant torts. Selling out the US doesn’t cause particularized damage to any one individual person.
Possible response: focus on all the financial crimes the Trumpists committed along the way. Some of those crimes have victims, e.g. leading to shareholder’s lawsuits.
Also, the special prosecutor could presumably offer his extensive data to the tort plaintiffs (or at least tell them what to subpoena).
2. In a few cases the prosecutor could threaten to wait until the end of Trump’s term before indicting. There are two problems with this:
a. In many cases the statute of limitations will run out. Possible response: conspiracy to commit obstruction of justice is an ongoing crime, so the statute of limitations will not run out as long as Trump keeps obstructing.
b. Trump can presumably pardon any and all crimes before the criminal has even been indicted.
i. prosecutors can claim that pardoning must be for specific crimes, so they could sue to get a record of the specific crimes, which in itself helps create evidence.
ii. Trump will need to issue a large number of pardons. That could be responded to politically, e.g. with intensified impeachment efforts.
Trump is also setting up the claim that he can pardon himself. I’m thinking that case would eventually go the SCOTUS, which I’m guessing would be unwilling to declare the President entirely above all of the laws the Court interprets.