Should Trump be criminally prosecuted after he leaves office? Many assume that a president cannot be prosecuted while in office but can be later. Even so, that an ex-president can be prosecuted does not necessarily mean that he should be, and my feelings about such a prosecution are mixed.
Deciding not to bring valid criminal charges seems to place the president above the law, and that does not seem right. On the other hand, a prosecution brought by a political rival tends to make the country look like a despotic state in which political rivals get jailed by those in power. In addition, I am concerned that the Trumpistas may become even stronger and more entrenched by a Trump prosecution. My opinion: Trump should be prosecuted only if he committed a crime of such clear venality that it would be apparent to most people that this was not simply a political prosecution.
However, if Trump pardons himself before leaving office, the next administration will have almost a duty to prosecute him. The self-pardon brings up two issues: 1) Can there be a pardon when a person has not been convicted or even charged with an offense? 2) Can a president pardon himself? There is an accepted answer to the first question, but not the second.
It seems strange to many that a pardon can be issued for crimes that have not been charged, but we have two famous examples of such clemency in our history: On Christmas Day 1868, President Andrew Johnson pardoned all confederates even though the southerners had not been charged with crimes. And on September 8, 1974, President Gerald Ford pardoned Richard Nixon even though Nixon had not been indicted or charged. Nothing in the Constitution and nothing said by the Founders authorizes such preemptive pardons and nothing forbids them, but the actions of Johnson and Ford have been accepted as legitimate. Thus, pundits proclaim that a president can pardon people for crimes that have not been charged.
(There is an important difference between those two pardons. Johnson pardoned the confederates “for the offence of treason against the United States, or of adhering to their enemies in the late civil war.” Ford issued a blanket amnesty for any and all crimes, known and unknown, during a specific period. Ford granted Nixon a pardon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.”)
So, while there is precedent for pardons of unindicted crimes, we have no historical precedent for a president pardoning himself. Arguments have been advanced both in favor and against that power. If Trump does issue an I-forgive-myself decree, I may explore the competing arguments, but suffice it to say now that it is not certain whether presidents are allowed to self-pardon. However, neither the constitutional text, the constitutional debates, nor court decisions made it clear that a president could preemptively pardon, but the actions of Johnson and Ford have served as precedents legitimizing that power. (Jimmy Carter on his first full day in the Presidency in 1977 granted amnesty to all who evaded the draft during the Vietnam War era. While many praised or condemned the wisdom of his action, no one seems to have questioned his authority to grant the preemptive pardons.)
And that is why if Trump pardons himself, the Justice Department, assuming it has appropriate grounds to do so, should indict the Donald. There are clear dangers in presidents being able to pardon themselves. They can then freely commit crimes knowing that they can escape criminal punishment by being able to pardon themselves. If Trump pardons himself and that action is left unchallenged, it may become assumed that a president has such authority, just as it is now accepted that presidents have a preemptive pardon power. A self-pardon should be challenged so that the courts are forced to rule on its legitimacy. Thus, the scenario goes, Trump is indicted. Trump, presumably through an attorney—please, please, let it be streaky-faced and incoherent Rudy Giuliani—will move to dismiss the charges, citing the pardon. Courts will have to rule on this motion, and that ruling will presumably make its way to the Supreme Court. In the end we would have more than Trump’s opinion that he has the ability to pardon himself.
Thus, I am hesitant about trying Trump for crimes unless he pardons himself, and then there definitely should be a criminal prosecution. I expect that others share these views, and thus we have a somewhat bizarre situation where if Trump does not pardon himself, he is less likely to be federally indicted than if he does.
Of course, if Trump wants a pardon, he should work out a deal with his Vice-President and say, “Mike, I will resign if you, when you are President, will pardon me. Pinkie swear?” But since it is not clear that the two are even talking these days, this will be a hard conversation for Trump to initiate.