You knew this already, of course. Anyone connected to reality knew it. Even most of Trump’s political allies probably knew it. But important incentives induced people in the pro-Trump camp to pretend otherwise. And now, as so often happens, Trump has yanked away the protective deception to reveal the truth.
And now again, Trump presents the country with a crisis and a conundrum.
What Trump did on that call with Georgia Secretary of State Brad Raffensperger, first reported by The Washington Post this afternoon, might well have been a crime. More than that cannot be said until and unless a jury is heard from. But Trump has reason to worry about new juries today, alongside all the other juries he was worrying about yesterday.
Trump’s thoughts now must turn to a Plan B. Plan B is to protect himself from juries even if he loses office. Plan B points to a self-pardon, and the huge crisis that must ensue.
President-elect Biden has already signaled his high preference not to take legal action against his predecessor. A President Biden could not protect a former President Trump from state criminal actions or civil liability, but he could signal to the Department of Justice that prosecuting a former president for federal crimes would be divisive and distracting, and therefore is to be avoided if at all possible.
But if Trump is unwilling to trust Biden’s forbearance, and chooses to attempt to pardon himself, it would be a direct attack on the whole structure of the rule of law. Nobody knows whether presidential self-pardons are valid. Scholars disagree; courts have never ruled on them, because no past president ever tried such a thing. But a president desperate enough to try to steal an election on a recorded line is desperate enough to try a self-pardon.
If a president can pardon himself as well as his or her subordinates, a president can order any crime, or commit it himself, with absolute impunity. The very notion of a self-pardon is radically inconsistent with democratic accountability. If Trump tries to pardon himself, his successors must fight his attempt all the way to the Supreme Court. And given the Raffensperger recording, who doubts that Trump will try it?
The sensible American majority surely wants an end to Trump controversies after Inauguration Day, a return to normal governance and the crucial work ahead: overcoming the pandemic, restoring the economy, and renewing U.S. leadership of the world. But Trump gets a say too, as he got a say in the impeachment crisis. Trump is abusing the power of the presidency until his last hour in office. And his nonstop abuse seems likely to force a reckoning even by those most eager to move on. Trump will not be ignored; he will not let the chapter quietly close. Show him a red line, and he will cross it. And if the country’s red lines are to be reestablished, Trump will have to face the law he violated and violated and violated again.
- David Frum, The Atlantic
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