Two weeks after [Joe] Arpaio was found guilty, Trump started focusing the thoughts of those who would attend his Phoenix rally the next week. It began with an off-air interview with a television pundit working for Fox News, the reliably Trump-supporting cable channel.
"Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?" Trump asked Fox's Gregg Jarrett. "He has protected people from crimes and saved lives. He doesn't deserve to be treated this way." Jarrett said Trump also told him, "I am seriously considering a pardon for Sheriff Arpaio. He has done a lot in the fight against illegal immigration. He's a great American patriot and I hate to see what has happened to him."
Not a skeptical word from Jarrett, a lawyer, who on Fox's Sean Hannity show told only part of the story. Jarrett called the case a "political prosecution that began in the Obama administration," speaking more like Arpaio's lawyer than a news analyst.
The case began during the George W. Bush administration and the decision to prosecute for criminal contempt came during the Obama era. It was during the Trump administration that Arpaio was tried for criminal contempt of court and convicted.
That Trump is thinking about using pardons to compromise the Mueller investigation was beyond doubt after the Phoenix rally. While the pardon power appears to have no limits, other than using it to prevent impeachment, Trump's willingness to use it is fraught with peril for himself and the Republic. Using pardons strategically could seriously hamper the Russia and other investigations.
Pardons are for "offenses against the United States." By accepting a pardon, a person admits guilt for committing the crime. Anyone is free to accept or reject a pardon, as a principled person might who believes that he or she was innocent and had been wrongly convicted. There are plenty of examples of people who refused to say they committed a murder, rape, or other crime just to get out of prison, even if it meant staying behind bars until they died.
Anyone who accepts a Trump pardon, including Arpaio, is admitting he committed offenses against the federal government. But there is a way around this. The Constitution also gives the president the power to grant reprieves, such as letting a prisoner get out of jail early, without settling the issue of guilt or innocence. Such clemency is not optional. If the president orders someone freed from prison or otherwise relieved of criminal punishment, that person cannot say no.
Pardons can be issued preemptively, before any criminal charges are brought, as President Gerald Ford did when he relieved Richard Nixon and the country of the prospect of Nixon being tried for a host of felonies, including conspiracy and income tax evasion (for which Nixon's lawyer did go to prison).
That explains why strategically issuing pardons and reprieves would likely occur late, not early, in the Mueller probe and those by House and Senate committees. The problem issuing pardons poses for Trump is that anyone who accepts a pardon loses his or her Fifth Amendment right against self-incrimination. If you have been pardoned, you cannot be tried and therefore must testify in criminal proceedings and before Congress. Lying in such proceedings, including falsely claiming you cannot recall something, subjects you to prosecution for that criminal conduct.
Nothing in the Constitution would prevent Trump from issuing serial pardons, either. Thus, he could pardon someone who had evidence that Trump would not want used against him, and if the person was indicted for refusing to testify, he could, as with Arpaio, pardon them again even before they were found guilty of contempt of court.
Presidential pardons apply only to "offenses against the United States." This means that state prosecutors are free to bring charges for crimes within their jurisdiction, which helps explain why Mueller's team is working with Eric Schneiderman, the New York State attorney general. Should Trump pardon, for example, his sons or his son-in-law, or Paul Manafort, his former campaign manager, or others, Schneiderman would be free to bring state-level charges.
David Cay Johnston "It's Even Worse Than You Think: What the Trump Administration Is Doing to America" 2017
