Fans of “The Office” will recall when blundering boss Michael Scott dramatically told his colleagues: “I declare bankruptcy!”
The legal effect of Scott’s declaration was the same as Donald Trump’s declaration Monday on Truth Social that Joe Biden’s pardons of former House Jan. 6 committee members and others are “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT.”
Elections have consequences, including the winner gaining the broad power of clemency.
Just as the fictional Scott’s statement didn’t cure his financial woes, Trump’s late-night social media statement didn’t erase another president’s pardons (and no, Biden purportedly signing the pardon via “autopen,” as Trump alleged, wouldn’t change that). The next president can’t undo Trump’s pardons of Jan. 6 defendants or anyone else, no matter how much they might disagree with them. Elections have consequences, including the winner gaining the broad power of clemency.
Now, that’s not to say that Trump’s words have no effect or don’t matter. Quite the contrary. If I were one of the pardoned committee members, I might be especially concerned about the part of Trump’s post that said such individuals “should fully understand that they are subject to investigation at the highest level.”
But wait — if there’s no legal force to Trump’s pronouncement, what do they have to worry about?
They have to worry about the reality that the Trump administration isn’t doing things solely based on the law. For example, his executive order targeting the law firm Perkins Coie for its work with Democrats was easily blocked by a federal judge last week, but not before the order caused the firm to suffer what it described as “significant harm.” And the judge blocking the Perkins Coie order didn’t stop the president from issuing a similar order against another firm later in the week. Trump’s personal grievances appear to be driving the action, backed by whatever legal arguments government attorneys loyal to him can muster on his behalf.
Of course, if the Trump Justice Department looks for crimes to charge against former committee members like Liz Cheney, and if the DOJ comes up with something, then the defendants would be able to point to their pardons as a defense to the charges. At that point, the government can present whatever arguments it has to a judge, after which the charges would likely be dismissed in the end.
But that’s the thing. It can take a while to get to the end.
Recall that, before Biden issued the pre-emptive pardons, there was discussion about whether people should accept them if they didn’t think they did anything wrong. Before the pardons came, I wrote that a more significant consideration might be whether potential recipients wanted to risk time, money and possible incarceration to defend themselves even if they’re innocent.
Trump’s social media statement suggests he wants to put the pardon recipients through the legal wringer, notwithstanding the clemency they’ve received. Even if no charges come, subjecting people to investigation alone can be damaging enough, let alone for any suspected crimes they can’t legally be charged with. Whether charges come or not, Trump’s threat supports the notion that Biden had reason to try to protect against them.
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