Below is my column in the Messenger on the odds of Trump going to jail (as opposed to being convicted) and an interesting option for President Joe Biden: pledge to commute Trump’s sentence.
Here is the column:
“Can you give me the odds?” The question from a foreign correspondent this week was blunt but understandable. Legal analysts often are asked to give the percentages on a case’s outcome or conviction. This reporter wanted the odds on Trump being convicted. As in the past, I declined to offer a spread. For most of us, convictions are what gamblers call “off the board” bets; handicapping criminal cases can be not just untoward but unwise.
In truth, the reporter asked the wrong question if he was trying to get the spread on Trump’s future. The better question would have been the odds on Trump going to prison, not his odds of conviction. They are distinctly different propositions, and there is a reliable spread on that possibility.
On the merits, much can occur between now and a conviction. While the government has the advantage in this federal indictment, there are challenges being planned to attack the use of the Espionage Act, the use of statements made by Trump to his former counsel, and other issues. Moreover, with almost half of the country saying they view this prosecution as politically motivated, Department of Justice special counsel Jack Smith could face a hung jury even if the indictment is found to be valid.
However, the odds of Trump going to prison could depend more on the court of public opinion than on the court of law.
Republican presidential candidate Vivek Ramaswamy has pledged to pardon Trump and challenged other candidates to do likewise. The pressure to do so will only likely increase as candidates attempt to lure away some of the 80 percent of Republican voters who view this as politically motivated.
Thus, the odds of Trump going to prison could well be the same as the odds of him or another Republican winning the 2024 presidential election.
Currently, those odds are roughly even. Voters overall are not enthused with either Biden or Trump, but 34% favor the current president and 32% favor the former president in a USA Today/Suffolk University poll.
Some observers are suggesting that if Trump were elected, he could not give himself a pardon. There is even a suggestion that he would need to temporarily relinquish power to his vice president under the 25th Amendment to allow him or her to pardon Trump.
That is not necessary. Presidents can issue self-pardons. While there are some legal and political analysts who believe self-pardons are impermissible, I have long disagreed. Indeed, five years ago, I wrote how Trump’s future could come down to a self-pardon. While I do not agree with self-pardons, I do not see any constitutional barrier to the use of such presidential power.
Article II, Section 2, of the Constitution defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language specifying who may or may not be the subject of a pardon. The president is simply given the power to pardon any federal crime.
The Justice Department has one prior opinion on this issue from August 1974, from the Office of Legal Counsel (OLC). It was meant to address the possibility of then-President Richard Nixon pardoning himself. Like Trump, Nixon was hardly popular with the Justice Department. In October 1973, Nixon carried out the “Saturday Night Massacre” over Attorney General Elliot Richardson’s refusal to fire special prosecutor Archibald Cox; the standoff led to the resignations of Richardson and his deputy, William Ruckelshaus.
Acting Assistant Attorney General Mary Lawton issued the three-page memo, which was lacking both depth and support. She declared that self-pardons are unconstitutional, stating that ”under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” It was not a formal opinion, and — in my view — it was dead wrong.
The only limitation on the pardon power is that it cannot be used in cases of impeachment. Some have suggested that the limitation reflects an intent to bar self-dealing by a president. As I have previously argued, that argument confuses very different provisions with very different functions. Impeachment relates to the status of an officeholder, while indictments relate to the individual. A self-pardoned president can still be impeached.
Indeed, presidents have long used presidential powers to benefit themselves and their families in various ways. John F. Kennedy appointed his brother, Robert, as attorney general; Trump put his children on the White House staff. Pardons are no different. The Constitution does not bar such self-dealing any more than it bars self-pardons.
Presidential pardons have a checkered past of friends and family made beneficiaries of this power. Bill Clinton, for example, not only appointed his own wife to head a major federal commission on health care but pardoned his own half-brother.
Ramaswamy made a brilliant publicity move in getting to the front of the candidates’ line for pardon pledges. Trump already is running on this case, and many will likely view their votes as a way of defying the political and media establishment.
President Joe Biden could make an unexpected legal move, too, however. He could pledge not to pardon Trump but to commute any sentence handed down if Trump is convicted, declaring that — in the best interests of the country — he would spare his rival and a former president from being sent to prison. It would blunt any criticism of a more lenient outcome in Biden’s own classified-documents scandal.
Trump then would lose the danger of a potentially terminal sentence as a campaign issue — at least with regard to federal charges. (None of the presidential candidates could pardon Trump for state charges in New York or, potentially, in Georgia.)
Trump has pledged a comprehensive legal attack on his federal indictment. His odds in the upcoming challenge are not nearly as good as his odds in the upcoming election. In the end, however, that may be all that matters.
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