Opinion | Trump needs someone else to win

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Loser former president Donald Trump has it all wrong. Apparently he thought he could avoid prosecution by running for president; instead, he forced weak Attorney General Merrick Garland to appoint firebrand special counsel Jack Smith, who, unlike Garland, had no qualms about moving quickly against Trump.

But Trump still doesn’t get it: To protect himself from prosecution and possible federal prison time, the last thing he should want is to win the presidency. Trump, his supporters and the media have gravitated toward the myth of self-pardon. Until recently, the word wasn’t used, which gives you a hint that the concept is flawed.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal, Laurence H. Tribe, Richard Painter and Norman Eisen wrote in The Post in 2017. It added that any official removed by impeachment remains fully subject to criminal prosecution. That provision is meaningless if the president pardons himself.

They explained, The Constitutions pardon clause originated from a royal pardon granted by a sovereign to one of his subjects. We know of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. Otherwise, they point out, many deposed kings would have been saved instead of going to the chopping block. Both the principle that one cannot be Judge and lawyer for any of the parties and simple logic indicate that the president cannot pardon himself.

Follow the opinions of this author Jennifer Rubin

Otherwise, why would there be a prohibition under Justice Department guidelines against prosecuting a president (only) in office? Indeed, the Justice Department, in its original 1973 Office of Legal Counsel (OLC) memo and a 2000 update, looked to the part of the impeachment clause that provided that if the president (or other official) were convicted, that person would however liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. The Department of Justice found that the clause was intended to allow criminal prosecution despite a prior Senate conviction, that is, to avoid a double jeopardy argument.

Furthermore, in considering whether ex officio non-prosecution would bar ex-officio prosecution (such as the running of the statute of limitations), the OLC never held that self-parole could waive the any persecution. If a president could always escape prosecution by pardoning himself, the issue of impeachment in office would be moot, and the guideline would not have to fulfill the promise of future prosecution.

If self-pardons are true, then any president, including Richard M. Nixon, would have no qualms about committing any crime and would not need to rely on a successor pardon. (Why wouldn’t every president jump at the chance to engage in a crime, safe in the knowledge that he can pardon himself on his way out the door?)

Constitutional expert Philip Bobbitt wrote in Lawfare in 2018 that it wasn’t even a close call despite punditry declaring the validity of self-pardons. (There is less warrant for doubt about the question of pardons in regard to a singularly powerful officer who, if malignant, is capable of great criminal mischief, than the recent presentation of the issue suggests.)

[I]fa president can pardon himself, he can illegally refuse to leave office if convicted by the Senate, Bobbitt wrote. Here it is useful to recall James Wilson’s admonition to the Constitutional Convention: if [the President] be a party to the offense that he may be impeached and prosecuted.

Even if you believe that there is some argument in favor of a self-pardon (although the more circumstances revolve around it, the less it makes sense), Trump cannot guarantee himself a pardon unless the pardon comes from someone else. person. What’s the point of a pardon unless prosecutors recognize it as inviolable, as happened when a former president (Nixon) received a pardon from a successor?

Trump’s notion that he can avoid prosecution by winning an election has another obvious flaw: No president has the ability to pardon himself or anyone else for state crimes. Although he may think (falsely, in my view) that he can slip through the hands of Manhattan prosecutor Alvin Bragg (at least on a felony), he may still face prosecution in Georgia for his alleged election interference. If an indictment comes, as expected, in August, we will see a pile of evidence pile up against Trump, perhaps bolstered by testimony from his former associates. If Trump really wanted to avoid prosecution and punishment, if convicted of alleged state crimes, he would have to arrange a plea, something he refuses to consider, or flee a jurisdiction no extradition. Running for president won’t help those cases go away.

However, the Smith cases remain the biggest problem for Trump. Trump will not get Smith, who has found what he believes to be damning evidence of federal crimes, off his back by running or winning the presidency. Trump may have other reasons for running (hunger for attention, the ability to raise money with campaign appeals). That said, his attorneys along with Republican legal figures (former Republican attorney general and White House counsel) would do well to explain to him that his only hope is to avoid Smith and foreclose the possibility of federal prison time. is dependent on a pardon from another president. He should plan his future political moves accordingly.

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