Genuine remorse would help, but is not in sight

Caveat emptor: I am not a lawyer.

President Trump is spending quality time in his last days in office considering pardons. He has already pardoned more than two dozen people, including war criminals, an abusive sheriff, a leaker of classified information, several political cronies, an extortionist, his own first National Security Adviser, and a few worthies to deflect criticism: suffragist Susan B. Anthony and pugilist Jack Johnson among them. Trump has also commuted 16 sentences, most notably that of his mendacious cheer leader Roger Stone for his efforts to coverup for the President in the investigation of Russian interference in the 2016 election.

The difference between a pardon and commutation is important. A pardon implies guilt that is wiped away. Someone pardoned cannot refuse to testify based on an allegation of self-incrimination (“plead the 5th” in American parlance). Commutation annuls a sentence, not the guilt, so Roger Stone will still be able to plead the 5th in connection with his actions during the Russia investigation. That’s clearly what Trump wanted.

We know a pardon can be non-specific to a particular crime and that a president can be pardoned, because both were done by Gerald Ford in his pardon of President Nixon. What we don’t know is whether a president can pardon himself. While the pardon power is not limited in the Constitution, a self-pardon would amount to an official act undertaken for private gain. In my book that is corruption, but who knows what a court would decide.

Even the fact that Trump is considering pardoning himself, as well as his friends and family members, is unprecedented and revealing. It implies he knows perfectly well that he has committed crimes, both before taking office and during his presidency. Certainly there is an ample docket of potential accusations. President-elect Biden has made it clear he is not interested in pursuing prosecution, but he also intends to delegate such decisions to the Justice Department and US Attorneys. It would be astounding if no one at Justice or among the US Attorneys had the evidence needed to convict and Trump knows it.

Even if he pardons himself, Trump could still face charges in state courts, especially New York’s. There the main issues are likely to be financial. Trump notoriously adjusted the valuations of his properties to suit his personal interests, not the legal requirements. Again it would be astonishing if no prosecutor in New York State had the goods on him.

The wisdom of pursuing prosecution of a former president is another issue. It is understandable that Biden won’t want to spend his presidency answering questions about Trump’s malfeasances and legal troubles. But at the same time there is a need for accountability. If no one is above the law, Trump should not be above the law. A conviction or two might go a long way to reducing him to political irrelevancy, which in my view would serve the interests of the country at this juncture.

But more than prosecution and conviction, what is needed is for Republicans to acknowledge that Trump took them and their party in a direction they should not have gone. His racist populism, fiscal profligacy, affection for autocrats, disdain for allies, and bad judgment in failing to respond to Covid-19 are the real issues. Much as I would like to see him pay his fair share of taxes, only his political party and voters can do what is really needed: return to a political discourse based on respect, facts, and the compromises required to serve American citizens well.

The question then comes down to this: what will convince the leadership of the Republican party and Trump’s base to abandon him? Do they need to see him humiliated in court? Or will they reconsider their direction based on the election results? The latter certainly hasn’t happened yet. The strong showing in the House elections makes it unlikely. I can hope the Senate runoff in Georgia January 5 will be the right occasion for an electoral defeat that leads to a re-examination, but there is no sign of it in the way the Republican candidates are running there.

Remorse is what is needed. It is nowhere to be seen.