In the wake of yesterday’s breach of the Capitol, Vice President Mike PenceMichael (Mike) Richard PenceCongress affirms Biden win after rioters terrorize Capitol GOP senators blame Trump after mob overruns Capitol Officials discussing 25th Amendment for Trump following violence at Capitol MORE should clearly state that he will not grant a pardon to President TrumpDonald TrumpTrump acknowledges end of presidency after Congress certifies Biden win Congress affirms Biden win after rioters terrorize Capitol Third House lawmaker tests positive for COVID-19 this week MORE if Trump resigns before the inaugural of President-elect Joe BidenJoe BidenTrump acknowledges end of presidency after Congress certifies Biden win Congress affirms Biden win after rioters terrorize Capitol Here’s how newspaper front pages across the world looked after mobs stormed the Capitol MORE.
In a column in November, I predicted Trump would resign, and Pence would pardon him. I continue to believe that this was exactly Trump’s plan — and that it is possible the president’s recent tensions with Pence might be related.
While Trump has a long history of accusing political opponents of crimes including treason, his conduct since the day after the 2020 election may well qualify as sedition, according to some legal experts. While this case would have to be proven under due process of law, it should be unpardonable as a matter of patriotism and principle.
If a president could constitutionally pardon himself, that president would be literally above the law. He could in theory commit any federal crime and pardon himself afterward. The power of a presidential self-pardon would make that president an effective monarch, a dictator, a despot — something the Founding Fathers would never have accepted or intended.
There is a distinct difference between a presidential pardon by Pence and a presidential self-pardon by Trump. While in either case a pardoned Trump could be subpoenaed to testify under oath with no defense of self-incrimination, in a Pence pardon, the courts would rule that previous potential crimes before the pardon could not be prosecuted. In a self-pardon, crimes prior to the pardon could be prosecuted if the Supreme Court rules that a self-pardon is invalid.
In either case, a pardoned president could definitely be subpoenaed to testify under oath and penalty of perjury. So could any other person pardoned by the president, including former Trump campaign chairman Paul ManafortPaul John ManafortMichael Cohen predicts people Trump pardoned may testify against him Roger Stone thanked Trump for pardon during exchange at West Palm Beach club GOP senator on Trump pardons: ‘It is legal, it is constitutional, but I think it’s a misuse of the power’ MORE and all other pardoned individuals who may have knowledge of crimes. They would all have to testify fully and truthfully under penalty of perjury.
Trump could be questioned under oath about his recent phone call to the secretary of State of Georgia, which might well be considered a crime. He could be questioned about any other similar conversations with officials in other key states, and they could be questioned about whether Trump contacted them in currently unreported conversations.
What is happening today is unprecedented in American history. A president is working to negate an election that has clearly been won by his opponent, against decisions by federal and state courts involving judges and justices named by presidents and governors of both parties, as state election officials including those from his own party are intimidated and amid incidents of criminal violence in the Capitol while members of the House and Senate — and the vice president himself — were fulfilling constitutional duties to finalize the electoral vote count.
These attacks against American democracy should be litigated and judged under due process of law, and not protected or enabled by pardons.
Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives. He holds an LLM in international financial law from the London School of Economics.