Is Biden About To Help Make The Case For A Self-Pardon?

With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates.  Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.

      The short list for Attorney General contains some notable and less controversial figures like Judge Merrick Garland, former Sen. Doug Jones, and former Homeland Security Secretary Jeh Johnson. However, Sally Yates is one of the most astute political operatives in Washington.  She went from relative obscurity to legendary status in one of the most cynical and successful calculations in history.  She engineered her own firing at the hands of Trump – a virtual canonizing act for the media and many liberals.

      When Trump was inaugurated, Yates had only a few days left in government. She became acting attorney general in January 2017, following the departure of Attorney General Loretta Lynch. Yates had already been instrumental in signing off on secret surveillance of Trump associate Carter Page during the Obama Administration and had pushed for the investigation of incoming National Security Adviser Michael Flynn. Both investigations of possible Russian collusion were found to be without merit and Yates recently said that she would not have signed off on the surveillance if she knew then what she knows today.

      Yates had just become acting Attorney General when she was given the opportunity of a lifetime.  Trump was about to sign his travel ban and had sent the draft to the Justice Department’s Office of Legal Counsel, an office ordinarily given considerable deference on the legality of policies and orders.  The career staff at the OLC had found that the order was legal and within Trump’s authority.  Yates however quickly sent out an unprecedented order to the entire department not to assist the White House on the executive order. The move thrilled commentators and media figures who had long accused Trump of religious and racial bigotry. I was (and remain) critical of her action on the travel ban.

      For the record, I was one of the earliest critics of the order both on policy and drafting grounds. The order failed to address such groups as green-card holders and others legally present in the United States (those errors would later be addressed in subsequent orders). However, Yates did not say that the order was illegal.  Rather, she declared that she was not convinced the order was “wise or just” or “lawful.” It was a bizarre order since it is not the job of Justice Department attorneys to decide if a president is acting in a “wise or just.” Former Justice official and Harvard professor Jack Goldsmith pointed out that Yates neither determined the immigration order to be unconstitutional nor cited any basis for refusing to defend it. Accordingly, he said, Yates left the impression of “insubordination that invites the president to fire her.”

      Of course, if Yates felt the order was morally or legally wrong, Yates could have resigned like Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in the infamous “Saturday Night Massacre” under President Nixon. Why didn’t she?

     The reason seems obvious.  An official resigning a few days before she was scheduled to resign is hardly news. Yates appeared to want to be fired. She knew that such an order would make her termination virtually inevitable. Since ancient times, the only path to instant glory other than slaying a great tyrant is to fall by his hand. Trump fired Yates and she immediately entered the Pantheon of fallen heroes for the left.

       Notably, while the order would be expanded and altered in later superseding orders, the core of the travel ban remained the same. Indeed, the challengers went to the Supreme Court and said that it was essentially the same order with the same underlying discriminatory impact. Yates later explained that she considered the order discriminatory for the same reason. Yet, the Supreme Court ruled that she was wrong and the OLC was right. The order was constitutional.  It was not struck down but expanded. That does not mean that reasonable people could not have disagreed on that point. As I mentioned, I was a critic of the order. However, as I also noted, the existing case law favored Trump and, at best, this was a close matter for the courts to decide (not Sally Yates).

         It did not matter. The legend was made. She spoke at the Democratic National Convention and declared: “I was fired for refusing to defend Trump’s shameful and unlawful Muslim travel ban.” It did not matter that the order was not unlawful but upheld by the Supreme Court.

         It seems odd that Biden would even consider the addition of another controversial nomination to his Cabinet while arguing that he wants to heal and unify the country. Yates is clearly an intelligent person and her nomination would be very popular with many on the left. Yet, there is also an interesting dynamic to the nomination as it relates to the controversy over the self-pardon. This may not be the impetus behind the push for Yates but it could be an unexpected benefit. This could be a case where two controversies (like two negatives in mathematics) make a positive.

         There has been much discussion over the possibility that Trump could grant himself a self-pardon before leaving office. While this question has bedeviled law professors for years, I have long held the view (before the Trump Administration) that a president can grant a self-pardon but should not do so.  Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”

      Others disagree (including an excellent piece by Michael Luttig today which is the subject of a response on this blog).  Recently, Professor Larry Tribe insisted that Trump cannot constitutionally grant himself a pardon and noted that, if that were the case, Trump’s joke about shooting someone on Fifth Avenue, would “would make that literally true.” (In truth, it would not. Murder is first and foremost a state offense which is not in any way limited by federal pardon power). While I honestly doubt the courts would ultimately uphold Tribe’s view, we may be moving to resolve this interesting question.

         On a political level, a Trump self-pardon would might be quietly welcomed by Biden. The President-elect is already getting increasing demands from the left to carry out proposals ranging from packing the Supreme Court to free college tuition to major tax increases to D.C. statehood. There are also rising calls for the prosecution of Trump and many in his inner circle. Biden needs those prosecutions like another election recount. It will continue divisions and discord into his Administration.

         So why would Yates help? Because her nomination would be the ultimate argument for Trump to use for a self-pardon. Yates would rekindle far-right deep state conspiracies and confirm for many that the same biased, anti-Trump officials were being returned to the Justice Department. I would hope that Yates would not act in such a predatorial fashion but Biden could not pick anyone (short of James Comey) who would be more triggering for the right.

         So everyone might win in a strange way with a Yates confirmation.  Yates would pull off the most dramatic staged demise since Romeo and Juliet. Biden would have an excuse not to investigate and prosecute Trump. Trump would reduce his exposure to only state prosecutions while claiming that he had no choice but to self-pardon. Everyone was left no choice and politics again triumphs over principle. To paraphrase the move “The Bronx Tale,” “you can ask anybody from my neighborhood, and they’ll just tell you this is just another [Beltway] tale.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

126 thoughts on “Is Biden About To Help Make The Case For A Self-Pardon?”

  1. Biden has 40+ years of wiggling free.
    Who else could have “resurrected” his family for all those 40+ years yers.

    1. Joke Buydem was a corrupt politician from the very state of corruption.

      The state allocated, reserved and dedicated to corporate headquarters; the state so full of corruption one cannot see the corruption leaving the observer only to the conclusion that there is no corruption.

      Delaware is the state of corporate headquarters.

      What attracted corporate headquarters to Delaware?

      What’s that tell you?

  2. Last I read the Constitution it was not included in that form. Since it’s not included it comes under Articles 9 and 10. Pretending it’s their is not reality he would need to resign and have his replacement provide the pardon.

  3. This is more of the nonsensical ranting about Trump.

    Trump can not pardon himself.

    You can not grant a pardon without a crime.

    Trump has not committed a crime, and there is no reasonable way he can preclude DOJ from investigating him when the left is bat$hit crazy and will manufacture crimes from thin air.

    Trump will also not pardon himself because it would be very stupid for the Biden DOJ to hound Trump – for MANY reasons.

    It will assure that Trump is in the news constantly – which Trump wants and Biden does not.
    It will not only play into the hands of the right – it will alienate moderates.
    Despite Threats, Trump did NOT investigate Clinton or Obama.

    Trump pardoning himself would allow Biden to pardon himself and his family – which would go over like a lead balloon.

    Trump is likely to pardon or commute all those tortured by Mueller – and that is fully justified.

    Regardless the stupidest thing Biden can do is kowtow to his own left.

    He is going to have a hard enough time governing as it is.

    1. Trump has committed multiple crimes, including his illegal hush money payments using Michael Cohen, for which Cohen went to jail.

  4. Sally Yates suggested that the bureaucracy should disregard the election and treat Trump as illegitimate. She is the only only one who did so explicitly as far as we can tell from the information available to the public,. She did that as the attorney general. She is a disgrace to our alma mater, a disgrace to the Yates name (which I apparently value more than she does), and a disgrace to this nation.

      1. Anonymous, his nom de déguisement, is really Mr. Shill, Paint Chips, etc., etc., etc.

  5. Biden knows Yates cannot not be confirmed even if the Dems win the Senate, so she will not be nominated. Biden will nominate the cute little JEFFREY TOOBIN to bring to SCOTUS a broader perspective than under the curmudgeon AG Barr. What do you say, Mr. Turley? I think TOOBIN will fit right in with the Biden freak show, but can he be confirmed?

  6. hello, all rather academic isn’t it? Particularly given the current POTUS isn’t conceding and we’ve entered into a weird phony war whereby all our actual enemies appear to have conspired to assist the hapless yet corrupt to the core Biden steal the election.

    Seems Alito, Thomas, Kavanagh, Gorsuch and Powell are champing at the bit to write themselves into history as the saviours of the Republic and the Constitution.

    Meanwhile the world’s greatest cuckold Chief Justice Robert’s is fading into irrelevance and nobody cares. Although the left will miss his dependable vote.

    The idiotic enemy of the people media are fast running out of stunts to keep the never-to be administration in the news and appearing relevant. Especially since the entire world knows the Pentagon refuses to brief Biden on anything classified. The collusion this time is real. Except it’s China.

    How long can the criminal usurpers continue the charade? As long as the media can maintain its suppression of inconvenient facts and disconnection with reality. Trump’s team continues to expose more fraud and shocking video. Kemp and Raffensperger ignore it for dear life the waddle out Gabriel Sterling to describe all the smoking guns as actually quite ordinary everyday features of the Now famously switcheroo prone Dominion voting system. Will we discover Sterling has a Chinese fiance handler and everyone benefitted from grubby purchase kickbacks?

    Anything goes, nothing surprises.

    1. Che is just our usual troll with yet another name. Apparently he didn’t notice that SCOTUS rejected Trump’s challenge to Pennsylvania today.


    Whenever you see irrelevant videos posted, make sure you scroll down to look underneath the video. Chances are it’s something the poster of the video doesn’t want you to see.

    1. If anyone including govt or the medical personal come after you or your family with a Syringe, a forced vaccine, it’s everyones Right to use any means necessary to defend yourself/family against those Aholes.

      Dr. Francis Boyle: ‘Bioweapon’ mRNA Vaccines Violate Nuremburg Ruling Against Nazi Cruelty


      Dec 8, 2020

      1. Oky1, do you have thoughts on why one would get a Covid vaccine given the success of say, the Polio vaccine? Why would someone deny a Covid vaccine?

        1. Why NOT get a Covid vaccine? This is the question. We’ve seen the success of polio vaccine, etc, so why should we not get a Covid vaccine? Just wanted your thoughts…

          1. I guess you & everyone else has seen the reports that keep coming in showing the largest cause now of polio is the Bill/Melinda Gates Foundation’s Polio Vaccine.

            You may have noticed in the video Dr Boyle brings up the stats he successfully used in a legal case regarding GW Bush/Chaney’s Anthrax vaccine used against our US military personal.

            He states, of the 500000 troops that were illegally forced to take the Anthrax vax 10000 died & at least 100000 troops were injured & disabled.

            And if these vaccines are so safe & effective was does need the govt to grant big pharma vax mfg’s product liability immunity? Why is their a secret vax court that cover up most all injury cases?

            There are tomes on the harmful effects of the big pharma vax industry.

            But one thing especially bad about this mRNA vaccines is that they are also “Mark of the Beast” vaccines damaging all future human generations

            1. In response to a question: are we still a free counrty? Candace Owens said this:

              ;No. We are not.
              We are not free to open our businesses.
              Our election was rigged.
              Big tech and media are censoring and silencing the masses.
              And we are on the brink of forced vaccinations for a virus that has a 99.9% survival rate outside of nursing homes.’

          2. People fear the COVID vaccine because of past events. First of all, Trump constantly lies, he bullied the FDA for emergency use authorization for Hydroxychloroquine and convalescent serum, both of which turned out to be duds, but he still got doctors to do his bidding. He even got the “demon sperm” doctor to push for hydroxychloroquine. Listen to the Woodward tapes, in which Trump admits lying to the public about the dangers of COVID. Trump is taking credit for development of the vaccine, which is outrageous. Current scientists built on a decades-long body of science and more modern science to develop the vaccines. As long as Trump is around, people are going to have concerns. They know he can’t be trusted.

            There were bad batches of polio vaccine in the 1950s that killed and crippled hundreds of children. Citing polio as an example of why we shouldn’t fear vaccines is not the best salesmanship. Of course, the Salk vaccine used a killed whole-cell virus (the bad batches failed to entirely kill the virus), and COVID only uses genetically-engineered proteins from the spikes on the COVID cell, but people do remember the Salk vaccine fiasco.

            Then, there’s the fact that the vaccines are created from genetic engineering–copying the DNA of the spike protein on the outside of the COVID cell. Many people are worried about the safety of genetically-engineered things put into their bodies, and won’t eat food containing GMO components, for example. Who knows whether these fears are reasonable? Can something genetically-engineered mutate into something dangerous? We hope not, but can anyone guarantee this?

            Setting aside the fact that blacks receive harsher treatment by law enforcement and are more likely to be killed by police, as to black people and their experiences with health and the federal government, decades ago at Tuskeegee University, a group of syphillis-infected men were denied effective treatment in a study that was used to see how long it took them to die and what symptoms and illnesses they would experience until they died. See the movie “Miss Evers’ Boys” for details. The doctors and nurses who knowingly participated in this study were all black, too, and this isn’t the only example of such a study. Imprisoned men were used for medical experiments and testing of drugs for decades, sometimes without informed consent. Then, there’s the HeLa immortal cell line and the lack of truth and transparency to the cell donor and her family: In the 1950s, Henrietta Lacks, a black woman from Maryland, had advanced cervical cancer, and was referred to Johns Hopkins for treatment. The doctors removed a cancerous tumor, and gave it to scientists at Johns Hopkins who had tried, but failed, to come up with a way to propagate a line of cells that could be used for medical research. Amazingly, the cells from this tumor were able to be cultivated, and they are still alive today. Henrietta didn’t last very long, but her cells are still around, and have been used in the testing and development of drugs and treatments all over the world. Her family only found out about this after a young woman investigative journalist discovered the source of the HeLa cell line and interviewed her surviving family. They knew nothing about it and wondered what other parts of Henrietta might be in the possession of the government.

            Everyone hopes for the best, but there are valid reasons for concern.

  8. O say does that star-spangled banner yet wave
    O’er the land of the free and the home of the brave?

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