In his waning days in the Oval Office, President Trump has floated the idea of pardoning a slew of family members and associates – as he has already pardoned the indicted ex-national security adviser Michael Flynn. For more than two years, he has also dallied with the prospect of a self-pardon, tweeting about his “absolute right” to make such a move and retweeting supporters urging him to do it.

Many are outraged by this potential “pardonpalooza” – to them, an obvious affront to the rule of law. But though it may be reckless, a freewheeling exercise of the pardon power by Trump nevertheless might have unexpected upsides. Paradoxically, it might give a boost to more effective forms of accountability than the criminal process, namely by empowering congressional investigations in which people with pardons couldn’t decline to testify. Such investigations then could lead to reforms to prevent future abuses by presidents and their associates.

Even a self-pardon – a stark flouting of the rule of law – could have a thimble-size upside: It would allow federal courts to rule, once and for all, that such pardons, whose legality have been debated for decades, are illegal. Such a ruling would not be a sure thing but seems highly likely, given the strength of the arguments against self-pardons and the Supreme Court’s demonstrable willingness to interpret presidential power in light of the Constitution’s broader commitment to democracy. In the long run, the benefit of a decisive ruling on the question might offset some of the immediate harm from a Trump self-pardon.

But first, consider the effects of pardons on congressional investigations. Many House Democrats say they will persevere, even after Inauguration Day, with lawsuits and investigations intended to shine light on the present commander-in-chief’s misdeeds. Rep. Jamie Raskin, D-Md., for example, has committed to “investigate things that are profoundly damaging to our system of government and are capable of repetition by a future executive or administration.”

But barring pardons, investigations such as Raskin’s will be uphill slogs. A major hurdle will be the Fifth Amendment’s privilege against providing testimony or documents that are self-incriminating. That privilege gives the former president, his family and friends a broad chit to refuse cooperation. The Supreme Court has said, after all, that even an avowedly innocent person can claim a fear of being “ensnared by ambiguous circumstances” to stay silent without legal repercussions.

Congress can get around that obstacle – but the process is fatally clumsy. Each time a witness invokes the Fifth Amendment, the House or Senate could, by majority vote, petition a federal district court for an immunity order; under this order, a person would have to testify but could not be prosecuted or sanctioned using their answers. Each use of this procedure requires giving weeks of advance notice to the attorney general, who makes the actual filing, and then witnesses might contest the order in court. The clunky process would quickly gum up congressional inquiries.

But a pardoned person is by definition no longer in legal jeopardy, so they can no longer claim any Fifth Amendment privilege. If they refuse to speak, the legislative branch can flex its contempt power: At one extreme, this can involve the threat of jail time, but it could also mean daily fines calibrated to the asserted wealth of a reluctant witness. For the Trump family in particular, their zealous defense of the wallet might make them eager to comply.

Concern over Trump’s potential pardons stems, in part, from the misplaced belief that criminal trials are the only instrument of accountability. But the nation absorbed lessons from Watergate despite President Gerald Ford’s blanket pardon of his predecessor – in part thanks to congressional investigations (both regular committee investigations and the select committee investigations overseen by Sen. Frank Church, D-Idaho, and Rep. Otis Pike, D-N.Y.).

Finding something positive in a Trump self-pardon is harder work. But even this outrageous act might well have an upside – if it is challenged and overturned, this tool would be out of the hands of future would-be autocrats.

Trump can flirt with the idea only because the Constitution’s drafters didn’t think to address the possibility that a president would pardon himself. (Article II speaks in general terms of a power to pardon “Offenses against the United States.”) The topic was not discussed in either the Philadelphia Convention or the ratification debates. The Framers believed ambiguities in the Constitution would be resolved by amending its text, but amendments require supermajorities in both houses of Congress and the states – clearly out of reach in these days of acute partisan polarization.

So it would be up to the courts to decide whether a self-pardon was legitimate. First, a relevant case would have to arise. Some legal commentators have argued that, even if Trump were to pardon himself, the issue would be moot unless a future administration charged him with a crime – which may never happen. But it could also be tested if Congress called Trump to testify as part of an investigation into his administration, and he declined. He could not simultaneously claim the protection of a pardon and refuse to answer questions. If he did, defying Congress’ contempt powers, he would squarely raise the legal issue of the validity of a self-pardon.

Today’s court is highly unlikely to endorse a self-pardon. A majority of the justices may be Republican appointees, but self-pardons – like concerns about presidential power more generally – aren’t the preserve of any one side of the aisle. (Some conservatives worried that President Bill Clinton would issue a self-pardon, although Clinton himself disavowed the idea.)

The justices wouldn’t mechanically determine whether self-pardons are constitutional simply by reading the text (which does admit the possibility). They would decide how the practice fits with the existing understanding of presidential power and Democratic governance. Recently, the court affirmed a presidential power to remove the heads of agencies – even if Congress disapproves – as necessary for Democratic control of federal agencies (not a power delineated in the text). Yet, earlier this year, the court also held that Congress had broad powers to investigate the president’s finances and acquire his tax filings, because this contributed to the smooth functioning of democracy.

Self-pardons plainly conflict with the Constitution’s commitments to prevent official self-dealing and concentrated undemocratic power, which is why very few legal observers believe them to be constitutional. For the court to say so, decisively, would be salutary.

When it comes to officials besides the president, the widespread concern about pardons overrates the importance of establishing criminal culpability and underrates the importance of congressional investigations. The pathologies of the Trump years have not been a function of one person’s actions. Legislative inquiries are better suited to airing these pathologies than criminal trials, and pardons won’t block them.

A blaze of pardons might draw attention away from an unproductively narrow instrument of – and way of thinking about – accountability: convictions and jail time. It could nudge Congress and the people toward a richer and fuller exploration of the perils our Constitution has recently faced, and may face again.


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