A Mike Pence Pardon of Trump for Flynn’s Pardon Would Obstruct the Mueller Investigation

Because of the way the Mike Flynn pardon is written (who wrote it, given that Bill Barr has said this kind of pardon would be a crime, remains a very interesting question), it makes it clear its goal is to make all consequences for Flynn associated with the Mueller investigation to just go away. Poof! It purports to pardon Flynn for any fact known to Mueller’s investigation and anything associated with Judge Emmet Sullivan’s docket.

Not only does the pardon raise vagueness problems (and attempts to pardon future crimes), but it makes it crystal clear that it is an attempt to invalidate the entire Mueller investigation.

That makes it all the more clear it is an attempt to obstruct that investigation and all subsidiary investigations that arose from it. It is an attempt to use Presidential power to ensure that no special counsel can investigate the President and have criminal charges associated with it stick. Joe Biden’s DOJ could easily incorporate this pardon into the obstruction charge that Mueller prepared, with the benefit of yet another new act that Barr did not consider in his (legally suspect) declination for Trump.

That means that if Mike Pence were to pardon Trump for actions that included this pardon, he would then be obstructing the Mueller and associated investigation. Trump’s legal jeopardy would become Pence’s. Mike Pence, who got through the entire Mueller investigation without any personal exposure, would finally be left holding the bag for at least a subset of the crimes identified by it and committed to cover it up.

Which is why I’m interested in the focus of this Carol Lee piece on Flynn. While it relies on interviews with 20 people involved, it doesn’t even cover the full scope of the public documents relating to Flynn’s actions, and in substantial part simply narrativizes what’s in the Mueller Report. Of particular note, it doesn’t mention the evidence that certain members of the Transition were fully briefed on Flynn’s actions, while others (like Pence, but also Tom Bossert) were not. It doesn’t mention how the White House scripted Steve Bannon to claim sanctions weren’t discussed at Mar-a-Lago. It doesn’t mention that Flynn told Russia Trump knew of his calls and that Flynn made the first one while with Trump.

Where it breaks new ground is its focus on Pence. Pence is mentioned 47 times, including a quote from someone describing his reaction to discovering he had been lied to. The most important new ground pertains to how Trump tried to make Pence responsible for firing Flynn, and how Pence deferred the decision to Trump.

One of the president’s top aides thought Trump was trying to shift the burden of deciding whether to fire Flynn onto Pence when he said: “Mike, he disappointed you. He let you down.” Flynn had apologized privately to Pence who wasn’t happy with him. Still, Pence told Trump he’d support whatever decision he made.

The purported reason for firing Flynn was that he lied to Pence (the real reason is that Trump was hoping to stave off any investigation into himself).

And yet, even in a story that focuses closely on Pence (and describes him smoldering while reading the Flynn transcripts), it claims that Pence played no part in this story (while stopping short of stating that he or his Chief of Staff Nick Ayers and his aide Marc Lotter, the latter two of whom are named, had no part in it).

Vice President Mike Pence has so far been silent about the pardon.


The White House and Pence’s office had no comment.


Trump never said publicly or privately that Flynn had lied to him. Just to Pence, and, in a tweet in December 2017, the FBI.

Here’s the thing. Not only would pardoning Trump for this pardon for the first time give Pence criminal exposure in the Mueller and subsequent investigations. But because Pence was left out of the loop of what was really going on with Russia during the Transition and afterwards — the back channels, the efforts to undermine sanctions, yet more back channels — he would have no idea what he was serving to cover up by pardoning Trump.

I find Pence’s silence in this very noisy NBC piece to be quite intriguing.

62 replies
  1. SaltinWound says:

    When you say Biden’s DOJ could include the pardon in an obstruction charge and then Pence pardoning the pardon would implicate Pence, I’m confused. I don’t think you’re suggesting Biden will be president followed by Pence.

    • Peterr says:

      That’s exactly what she’s suggesting, premised on a deal between Trump and Pence for Trump to resign and Pence to pardon him. Trump gets his get-out-of-jail-free card, and Pence gets the title President of the United States, even if only for a couple of weeks — which would help Pence set himself up for a 2024 run.

      • SaltinWound says:

        Okay, I thought the writing suggested the Biden DOJ move would come before the pardon, but it would be Pence’s pardon and then Biden’s DOJ in this hypothetical.

      • Marinela says:

        If Trump resigns, so that Pence becomes President for a short period of time. In this scenario would mean that if Pence gets elected after Biden first term, or second term, it means Pence cannot run for re-election since he already is at second term, first would be before Biden takes office.

        If Pence is going to be bound of a re-election this way, why would he even consider it?

        So I would say Pence is not going to do this deal to take office just to pardon Trump.

        So it looks like Trump would need to pardon himself.

        • earlofhuntingdon says:

          Trump is too arrogant to ask him – and wouldn’t trust him – and it’s the one ask Pence might well refuse, if it involved the quid pro quo of a pardon for Trump.

          It’s the sort of deal that would be hard for Trump to pull off without an aide/witness to the conspiracy, which means Pence would want an aide/witness to balance out the he said-she claims if he refused. That makes it less likely to take place.

          Pence might be backed by the DeVos family, but I don’t seem him having any traction nationally. He would probably have the fundamentalist vote, but he’s such a wimp, so much cold water looking for a vessel to give him shape, I don’t see him surviving many primaries. Obviously, he wouldn’t agree.

        • blueedredcounty says:

          It is not correct to say that Pence could only be elected for one term in this scenario. The amendment limiting a president to two terms states that you have to serve more than 1/2 of a term for it to count towards the limit. Several weeks doesn’t cut it.

          This is relevant to Biden and Harris, for instance. If Kamala has to serve out part of a term of Joe’s, if it is in the first two years of that term, she would be limited to running for only one additional term. If she assumes the presidency after two years and one day of that term, she can run for two additional terms. It would permit her, or any similar VP under similar circumstances, to be President for up to 10 years.

      • BroD says:

        Hard to believe that being President “for a couple of weeks” under these circumstances would really help Pence in a 2024 run.

    • Quake says:

      The hypothetical scenario iis Trump resigns before Jan. 20, Pence becomes President, and Pence pardons Trump. With Biden succeeding Pence on Jan. 20.

  2. Peterr says:

    Reading that Carol Lee piece made me speculate about her sources – who had she spoken with? It’s easy to spot places where specific people had to have been behind the account being told, but it’s hard to separate if they are being accurate or spinning things in their descriptions of events that make themselves look good and their West Wing opponents look bad.

    But this episode jumped out at me, in a “but her emails!” kind of way:

    Mary McCord, the acting assistant attorney general who had accompanied Yates to her first meeting with McGahn, received an email sent from Flynn’s White House account requesting a secure phone call to follow up on the McGahn meeting. It was odd enough that Flynn was sending her an email. But what made this truly a mystery for McCord is that the email was signed by Eisenberg.

    She decided not to reply and instead sent a new email directly to Eisenberg.

    The following day, she and Eisenberg spoke. He told McCord that he had been in Flynn’s office the day before and an assistant had accidentally switched his and Flynn’s phones when giving them back. He then said that he and Flynn had the same password for their phones, and so he accidentally sent the email from the national security adviser’s account.

    Let us recall: we’re talking about a retired general/retired DIA director/incoming NSA and a deputy White House counsel/NSC legal adviser here. It kind of makes the decision by the DOD/Obama to fire Flynn from the DIA post kind of a no-brainer. (Not in the story were the possible passwords involved: password or 12345678, perhaps?) McCord’s reaction, on the other hand, is just what one needs to do when faced with an oddity like the email she received. At least someone in the executive branch has an understanding of tech security.

    The story also makes me think about the willingness of media outlets to grant anonymity when it seems to serve no journalistic purpose, like this:

    When David Ignatius of the Washington Post first reported that Flynn had spoken with Kislyak the day the Obama administration’s sanctions were announced, Flynn directed his deputy, KT McFarland, to call the columnist and say that he and the Russian ambassador did not discuss sanctions during the call.

    “I want to kill the story,” Flynn told McFarland.

    After McFarland spoke with the columnist, the Post updated his article with an anonymous Trump official saying Flynn and Kislyak did not discuss sanctions.

    A not-for-attribution denial strikes me as the height of hypocricy, and the WaPo agreeing to print it is crazy.

    All this goes to your comment about Pence having no part in this story, Marcy. I don’t think that’s what the item you quoted means at all. The fuller quote from Lee is:

    In response to specific questions about this article, Flynn’s lawyer, Sidney Powell, referred NBC News to court filings posted on her website.

    Flynn’s first lawyer, Robert Kelner, declined to comment. The White House and Pence’s office had no comment.

    I read that to say that Pence had no on-the-record comment to the specific questions raised by Lee, not that Pence had no role in Lee’s story. Indeed, some of the stuff *about* Pence either came from him or from a close advisor of his and likely with Pence’s approval.

    But the end of the piece really has me wondering:

    Yet for officials who worked with Flynn in the White House at the time — who asked him repeatedly for weeks if he’d talked about sanctions with Kislyak and were told no — the mystery still lingers: why wasn’t he honest with them?

    “The biggest question that’s never been answered is why didn’t he tell everyone in the West Wing that he talked to him about sanctions?” one official said. “Because no one would have cared if he did.”

    From where I sit, the answer is obvious: because there is more to Flynn’s relationship with senior Russians than just a conversation about sanctions.

    And I’m right, and if Pence has even a whiff of what that might be, that makes his dilemma about what a pardon of Trump would mean for Pence’s own situation even harder to deal with.

    • PeterS says:

      Part of the reason Flynn lied may well be that he’d agreed with Trump that he would lie. As with most things involving Trump, what lay behind that agreement could be either deeply nefarious or plain dumb.

    • emptywheel says:

      The McCord exchange comes from her 302.
      The McFarland thing comes from the Mueller Report and some 302s.
      Yes, I agree that Pence had a role. If I wasn’t clear about that I’m sorry. Nick Ayers and Marc Lotter are both named and, as I noted, someone knew precisely how Pence responded to seeing Flynn’s lies.
      I think the claimed confusion about Flynn is nonsense. Trump was in the loop, and that’s clear and known to at least Flynn, McFarland, Bannon, and Kushner. That’s what I meant by saying that some people were in the loop and others, including Pence, were not.
      I also distrust the stories about how much Trump distrusted Flynn. Yes, there’s some backing that’s true. But the most concrete example is Trump’s complaint that Flynn didn’t tell Trump that Putin was his first post-inaugural call, not May. The comment was self-serving cover but also an admission of where his priorities lay.

      • subtropolis says:

        From the very beginning, I’ve believed that — reading between the lines, as is always necessary with him —
        what Trump couldn’t trust about Flynn was whether he would keep his mouth shut for him.

    • subtropolis says:

      I’d forgotten about that phantom “Eisenberg” email, and the bizarre excuse made for it. What a long, terrible nightmare this has been.

    • John Langston says:

      This whole deal has never made any sense to me. Flynn makes a call and undermines Obama’s sanctions. Then someone on Obama’s part leaks it to Ignatius; the message is “cut it out you’re not in office yet”. Instead of “no comment”, Pence denies it. Whether Pence is out of the loop (most likely) or lied to, the simple thing would’ve been to admit it and move on. In fact, Trump could’ve just said his policy will be different from Obama’s and “I don’t care”.

      Instead, it’s a string of ridiculous lies. And if Flynn lied to Pence it’s even dumber. Or something is really crooked here. And with this bunch, it’s hard to know if their stupidity is deeper than their treachery. I’d guess it’s a whole lotta both.

  3. Quake says:

    If Trump resigns and Pence takes over from Trump before Jan. 20 Pence is screwed whether or not he pardons Trump. Pence’s best move is to resign as VP now and let President Pelosi take over if Trump resigns before Jan. 20.

    • John B. says:

      Like that will happen. Not. That would forever tarnish Pencey with the fire breathers in the current Republican (Tory) party, like, forever.

    • Chris.EL says:

      ya know, that’s a great idea!!

      Because it will **guarantee** that Trump won’t resign.

      Lordy I hope Trump does not attend Biden’s inauguration — look at it this way, it would add one person to Biden’s attendance numbers. I wish Biden could take out a TRO.

    • Rayne says:

      Oh, I think there are sentences containing both of which you would approve. Nobody wants a visit from sunglass-wearing besuited men in dark-colored four-door sedans, though, after composing and posting examples.

      • earlofhuntingdon says:

        “The smoldering ruins of Mike Pence’s career, despite the full backing of the DeVos family,” comes to mind.

        • Rayne says:

          Sentence fragment, but yeah, that’s safe from the dark sedan crew.

          Speaking of smoldering, funny how Pence has been up to his ears in two different health crises — the HIV outbreak in Indiana when he was governor, and now the COVID pandemic.

          Now there’s a complete sentence.

          • blueedredcounty says:

            “The Pence pardon of Trump left his career in smoldering ruins, despite the full backing of the DeVos family.”

            I fixed the sentence fragment for you, Rayne. :)

  4. joel fisher says:

    This is a good argument against the VP choosing to become President-For-A-Day-Pence. But….does the Veep have any choice in the matter? If Trump were to resign, would Pence take the oath? I suppose he could decline to do so, but if ever there was a GOP career ender, it would be making Nancy Pelosi President. He could choose to incur GOP wrath and decline the Trump pardon. So he will do it and there are lots of reasons beside obstructing justice for a Trump pardon: avoiding national turmoil and stripping Trump of his 5th amendment rights to name two. However, I believe Trump will self-pardon as that path leads to “Bleak House”-type endless litigation during which Trump would enjoy both the 5th Amendment and the fruits of a pardon.

    • BobCon says:

      This and other reports of Pence wavering on Trump may all be a warning out of the Naval Observatory that Trump shouldn’t trust Pence to issue a pardon.

      Trump would have to decide if Pence was bluffing, and if he can really afford to call him on it.

      Pence may already be reading signs that Trump is going to undercut his 2024 hopes in favor of Trump’s usual monomaniacal focus on himself. If so, Pence may be calculating that there is no value in helping out Trump if Trump ends up going all out for Ivanka in 2024.

      Pence may also have reasons to suspect that Trump’s legal position is bad enough starting next year that stiffing Trump on a pardon helps him in the long run.

  5. John Paul Jones says:

    What I find interesting is the continual focus on the Logan Act, rather than on the possibility of blackmail/compromise. It seems beyond belief that McGahn and Eisenberg didn’t have the latter possibility in mind, yet for this story, they attempt to refocus the narrative, yet again, on a “process crime,” a “technical” violation. They also seem to have successfully got Lee to not focus on the Dec. 22nd call, the transcript of which has yet to be released. There’s also this interesting little graf, about one of the last meetings Flynn had with Trump:

    “Trump didn’t seem particularly shocked, according to Flynn’s own retelling of the meeting. And, he told investigators, that the president actually corrected him on one of the dates on which he said he’d spoken with Kislyak.”

    The little detail intended to show that Trump was not an idiot – that he was sharp enough to remember and recall a date on which Flynn spoke to Kislyak – actually might serve to condemn both of them. Any bets that date was Dec. 22nd? And of course there’s this:

    “Ten days after Flynn was fired, Trump ordered Priebus to have the deputy national security adviser write an internal email saying that Trump did not direct Flynn to call Kislyak to discuss sanctions.”

    A lot of the rest of Lee’s piece is just chronology; useful, I suppose, but not very enlightening.

  6. Ginevra diBenci says:

    Pence “smoldering”? That was Pence pulling off the acting triumph of his career. Mike Pence led the 2106 transition. He had to know what Flynn was up to. The deniability invoked for him has never seemed plausible to me, despite media willingness to subsume poor innocent Pence into their narrative. Few political operators can match his cynicism, but apparently if you soak it in the blood of the lamb we’ll see a victim.

      • Spencer Dawkins says:

        I’m also mystified, but I note that this is another in a long line of things Pence was in charge of and simultaneously clueless about. I’m reminded that in addition to the coronavirus task force, he was Trump’s go-to guy on “infrastructure” (looking at a Newsweek article from 2017, titled “Trump’s Infrastructure Plan Is Actually Pence’s—And It’s All About Privatization”).

        Second only to Kushner in span of (out of) control …

      • Ginevra diBenci says:

        Pence was never Trump’s first choice for VP, a distaste that was mutual. But both, as opportunists who recognized each other as means to many ends, quickly discerned paths forward. Trump did not, in fact, want Flynn around; when it became clear that “evidence” would back up the “Flynn lied to Pence” story, they circled the wagons around that one–not because it was true in any meaningful way but because it would fly–pious denials being Pence’s forte.

  7. earlofhuntingdon says:

    Why it would be worth Trump’s time to grant the Coffee Boy a pardon? Is George Papadopoulos the thread that would unravel the blanket? Or would he deserve one out of a sense of completeness?

  8. SVFranklinS says:

    Pence might go for being Pres for a day (or a week or two), but it never struck me as a very likely option, mainly because it just doesn’t fit the Trump MO.
    He’d have to admit to himself he did something wrong enough to need a pardon, and that would go against the grain of his entire narcissistic being. It would also put him in a position to be entirely dependent on Pence executing, and Trump is so mistrustful (with good reason), I believe Trump would be loath to do ever put himself in a position of such neediness.

    For the same kind of reasons, I expect Trump to declare he’s running for 2024, but it’s all about the grift, scamming donations from the base. He’ll never put himself in a position where he can be a loser by this much again.

  9. earlofhuntingdon says:

    One of the flaws in Carole Lee’s work is the credulousness with which she describes a Trump-Flynn conflict, and the notion that Flynn “flipped” between supporting Trump, cooperating with the Feds, and then back to supporting Trump.

    Marcy’s work suggests that Flynn always supported Trump and only facially cooperated with the Feds. Tied to that is Lee’s unwillingness to look seriously at why Flynn lied so much, both substantively and in his relationship with Trump. I think her conclusion about that – “we’ll never know why Flynn lied” – is a lame, let’s close the door on this, please.

    • Stacey says:

      There was just such a constant pattern that Flynn was one of only two to break: Trump’s co-conspirator gets caught doing bad things, Trump defends as a “good guy” (waits to see what he does regarding flipping), he flips, Trump gets in the bus and backs over him 13 times, end of story. But notice how, Flynn flipping NEVER resulted in Trump getting in the bus? He just kept silent about it, which I always thought was extremely odd and indicated another play was in motion.

      Then when Flynn started getting weird and trying to undo his plea and all the rest, I thought, well, see, there you go. Trump never ran his bus over Manafort and now we all sort of know that Manafort’s ‘cooperation’ was never anything but a double cross from the jump. Trump is just such a one-celled organism in many ways. Like his niece said in an interview I saw her in, “Donald is not very creative, if he finds a thing that works, he’s going to do it over and over again”. And if you see one person in his circle making an odd turn in the path like Manafort–pretending to cooperate–it’s pretty obvious Flynn was following a similar path in the end.

  10. Tom S. says:

    EW, you are being much too kind to Carol Lee’s access “journalism”. She sounded like Judy Miller while promoting this on Morning Joe, 12 hours ago. “Trump began to sour on Flynn during the transition… Kislyak calls, Carol’s unidentified sources don’t know why Flynn would lie to the FBI or to Pence….” You covered the shortcomings of the “reporting” and its seemingly intentional cluelessness, (almost like Carol Lee worked at it.)… never reading your independent expert analysis, walling off any influence of her supporting staff who may visit your website. There is no trace of resentment or of frustration in your piece, above. I love to remind the frothsome, emptywheel is not going to stop.

      • Vinnie Gambone says:

        Impeached and Pardoned ? No way. Too much humiliation for him. Trump is learning sometimes you win when you lose . $$$$$
        He will do whatever keeps him the spotlight. Expect ticket sales for his rallies. They’ll probably pass the hat too.

        • bmaz says:

          Heh, that is probably just about right. It is really the Trump cash cow now. What else does his family do at this point? I guess Kushner still has some slumlord properties, but what else do the real Trumps do?

  11. Badger Robert says:

    Nixon did not pardon any members of his administration. And my memory is that the FBI and Deep Throat knew the dimensions of the cover up and the cash payments. Although Ford pardoned Nixon, it does not seem to have obstructed any part of the investigation. Also the impeachment hearings were better developed in the case of Nixon.
    But Trump has been obstructing the investigation all along. The successive pardons could easily be seen as further acts of obstruction, as testified to by Mr. Barr.
    Which leaves Pence’s attorney asking, whose is going to pardon VP Pence if he pardons Trump?
    Which leaves Trump exactly where he should end up, he cannot trust anyone because he has never kept a promise to anyone about anything. So he’ll have to self pardon.

  12. Vinnie Gambone says:

    Trump is about to enter the Death of a Salesman period of his life. Good. Just like Willie Lowman, he will be handed the ” You are only as good as what you can sell” reality check. Wait till his exness loses two thirds of his secret service detail. All (most ? )of the protections Trump recieves at future rallies, there’s a limit, right ? Move over Norma Desmond, there’s a new has-been ready for his close-up. Trump is proof; you can’t polish shit. His health will give out before 2024. Who will be the next Trump ? Sexy I like the smell of wrestlers sweat Jim Jordan ? Trey Gowdy ? Gaetz ? Like to see that primary. ” Oh yeah, you’re real tough, Jeb. ” got trump elected. Neither Pence or Ivanka have a shot. Whose it gonna be ?

  13. Fran of the North says:

    The best part of this whole piece is the fact the EW is playing three dimensional chess with the tiddlywinkers (wankers??) in the WH. Talk about being outclassed and outthought…

    1) Whisper sweet nothings in the Veepster’s ear re: his increased exposure if he pardons.

    2) Amplify POTUS’ doubts as to whether he can trust Pence to do the dirty deed after he becomes CiC for a day. Of course Trump will need Jared to translate this into pictures so he’ll understand the gravity of the situation.

    Fran’s take: In the words of a famous Liverpoolean: “I’m just sittin’ here watching the world go round and round; I really love to watch ’em roll.”

  14. CD54 says:

    When is a Democratic “name” going to stand up and declare:

    “OK, Donald, go ahead and pardon them — we’re ready to put you in prison for Obstruction until you’re dead.”

  15. Badger Robert says:

    Flynn lied about talking to the Russians so that we would not have to admit that the Russians were calling in a debt that Trump owed to them. Having to answer those kinds of questions would substantiate the Mueller investigation, and Trump was and is pleased that Flynn stuck to the cover up.
    Nixon’s offenses did not involve international disloyalty, and his cover-up was unsuccessful.
    If Pence pardons Trump he takes on part of Trump’s liability and prolongs Trump’s media presence.
    Gaining access to hate radio does not seem to be worth having to answer questions about obstruction of justice as already put in the public discourse by Mr. Barr.

    • Smeelbo says:

      “Nixon’s offenses did not involve international disloyalty…”

      Although he would not be impeached for it, Nixon sabotaged the Peace Talks between North and South Vietnam in order to undermine the Democrats for the 1968 Election. As a Congressman, Nixon abused his position to get Nazis like Valerian Trifa into the United States.

      As for Nixon’s Coverup being “unsuccessful,” Watergate was the least of Nixon’s many, many sins.

  16. harpie says:

    Marcy: Not only does the pardon raise vagueness problems (and attempts to pardon future crimes), but it makes it crystal clear that it is an attempt to invalidate the entire Mueller investigation.

    11:35 AM · Dec 4, 2020

    NEW: These comments this AM about the Flynn pardon from Judge Walton came unexpectedly in our #FOIA case for FBI 302s from the Mueller probe. Walton rejected govt’s proposal that Flynn 302s be produced in Feb saying he wants it out “while this administration is still in office.” [link]

    Links to:
    Judge Questions Whether Trump’s Pardon of Michael Flynn Is ‘Too Broad’
    U.S. District Judge Reggie Walton said Emmet Sullivan could find that “the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”
    https://www.law.com/nationallawjournal/2020/12/04/judge-questions-whether-trumps-pardon-of-michael-flynn-is-too-broad/ / 12/4/20

  17. punaise says:

    On the subject of blanket pardons (what would Linus say?) my neighborly Berkeley acquaintance published this Op-Ed in the pay-walled WaPo:

    It might not be so simple for Trump to pardon his children and Giuliani

    President Trump’s holiday gift list, news reports suggest, may include broad pardons for his three oldest children and his personal lawyer, Rudolph W. Giuliani, even before they have been charged with any crimes. But if Trump believes such pardons would protect the recipients from federal prosecution, he should think again. In addition to violating core democratic ideals, such a move might well prove beyond his constitutional authority.

    Trump, of course, has never been one to concern himself with these niceties. And that raises the question: While blanket pardons are unseemly, are they also unlawful exercises of the president’s pardon power? The pardons for Nixon and the Iran-contra defendants don’t offer an answer, since neither was challenged in court.

    Most observers assume that the president is free to issue blanket pardons, believing the president’s power in this area is effectively unlimited beyond the few constraints explicitly mentioned in the Constitution (no pardons in cases of impeachment, or for state crimes). My scholarship suggests that interpretation is incorrect.

    The Supreme Court has never ruled on the specificity requirement, and the question of the validity of any blanket pardon by Trump would come up only if a federal prosecutor seeks to indict a pardon recipient who raises the pardon as a barrier to prosecution.

    But if the issue were to arise, there is a significant possibility that a court, dominated by self-identified originalists, would invalidate the use of blanket pardons. This possibility should make Trump pause before offering such pardons to friends and family. But it also leaves him in a bind. Should he attempt to specify each and every federal crime committed by his children or lawyer? Or is that a gift too costly even for Trump to consider?

    • earlofhuntingdon says:

      Originalism is a picket fence that hides the iron spikes. It’s a tool to promote neoliberal priorities, not a valid interpretive scheme. It won’t stop the Reactionary Five on the Supreme Court from supporting their preferred political outcome.

    • bmaz says:

      Don’t know Rappaport, and not sure I agree with him. But that op-ed, and his underlying paper from early this year, is as good of a crystallization of the position as I have seen to date. It is a compelling argument. But would it really hold? I don’t know, and especially in the Amy Barrett court.

  18. punaise says:

    The specificity angle would really seem to force Trump’s hand – in the unlikely event (!) he paid enough attention to the nuances of the argument.

    As a non-lawyer I will refrain from further analysis! Th Op-Ed has >3k comments, could be some interesting discussions there among the expected trollery.

  19. Badger Robert says:

    Why would anyone prosecute Trump for any crime committed during or before his so called Presidency? The preferred position would be to be prosecuting him for a post presidency tax crime.
    As for other pardons, if they are going to litigated, it would be best to do so with respect to the family separation policy after some lower level people have created a record and fmr Sec’y Nielsen explained how they intended to make her responsible for the plan.
    Move the pardon litigation, if any, away from Trump.

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