Constitutional Law, Criminal law, Lawyering, Media, Politics, Society, Supreme Court

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. Today Is ‘Safe Harbor’ Deadline

    State Courts Close To Further Election Challenges

    By the end of today, the nation will reach the so-called safe-harbor deadline, which is generally accepted as the date by which all state-level election challenges — such as recounts and audits — are supposed to be completed.

    Broadly, this means that President Trump’s efforts to overturn the presidential election are nearing the end of the line. After today, state courts would most likely have to throw out any new lawsuit challenging the election.

    Currently, there are only a few state-level lawsuits left unresolved, including some in Georgia, Arizona, Wisconsin and Pennsylvania.

    There is also a petition before the United States Supreme Court involving an appeal of a state lawsuit in Pennsylvania addressing whether election officials can accept ballots up to three days after Election Day if they were postmarked by Nov. 3. There were about 10,000 ballots in the state meeting that criteria, which is not enough to have an impact on the presidential election in the state (Mr. Biden won Pennsylvania by more than 81,000 votes).

    One open question is whether federal lawsuits can continue after the safe harbor deadline, though it is likely that they can — and will. Even so, there are now only three federal lawsuits remaining — two in Wisconsin and one in Arizona — and they will almost certainly wrap up soon.

    But in this extraordinary election year, where it seems anything can happen, the safe harbor deadline feels especially notable, as the possibility that the Trump campaign would be granted a hearing diminishes after today.

    Nearly every state has already certified its results, and after California’s certification on Friday, Mr. Biden has officially secured more than the 270 Electoral College votes needed to become president. And on Dec. 14, the Electoral College will cast its votes.

    Edited from: “Today Is The ‘Safe Harbor’ Deadline For All State Level Election Challenges To Be Resolved. Biden Still Won”

    Today’s New York Times

    1. After a corrupted and illegal election we are now supposed to honor a ‘safe harbor’ law? I don’t think so. You can’t put chocolate on a turd and expect us to buy it.

      1. Name a single court that agrees with you it was “a corrupted and illegal election.”

        You already bought chocolate on a turd when you voted for Trump.

        1. Anon: “Name a single court that agrees with you it was ‘a corrupted and illegal election.’”

          That’s easy. It’s called the ultimate court: One’s own independent judgment.

      2. Yeah, right, Young. We’re supposed to ignore a traditional deadline on the election calendar because it won’t accommodate Trump’s schemes.

  2. President Ford should not have preemptively pardoned President Nixon (or pardoned him even if he’d been charged, tried, convicted, and sentenced). It would have been better for the concept that no one is above the law and that we are a nation that follows the rule of law. It set into motion the idea that Presidents are somehow above the law. They aren’t. Discussing preemptive self-pardons is even worse. That’s a Get-Out-of-Jail-Free card that none of the rest of us get. Pardons should be used when a miscarriage of justice has occurred. Mercy is an important element of a civil society but so is justice. I don’t see that self-pardons or preemptive pardons as leading down the road towards justice and the reinforcement that, as equals, no one is above the law. Orwell warned about some pigs trying to be ‘more equal’ than others.

  3. It’s disgustingly cynical the way Yates manipulated things to become an admired martyr by those who should know better (but can’t and won’t).

  4. THIS JUST IN!!!

    SCOTUS has been meeting in SECRET for weeks and will TODAY issue a landmark ruling that the entire 2020 election was rigged by Democrats and TRUMP is the true WINNER. They will order that the vote be immediately certified for Trump.

    TRUMP WON 2020!!!!

  5. China: Joe Biden’s Election Benefactor

    China “invested” some $400 million to buy the election for Biden. (See the October 2020 UBS Securities LLC $400 million “investment” in Staple Street Partners/Dominion Voting Systems.)

    What is China’s motivation? Under Trump, they had lost their influence in the U.S. Under a Biden presidency, they know they can get it back.

    China admits their motivation, openly.

    Here is a video of a November speech by a Chinese official, speaking candidly about that desire for “influence.” (It starts at about 2:00 in the top video. There’s a transcript below the video.)

    https://www.foxnews.com/opinion/tucker-carlson-elites-china-collusion-di-dongsheng

    Incidentally, the same official confirms that China helped Hunter Biden create and fund his foundations:

    “Trump has been saying that Biden’s son has some sort of global foundation. Have you noticed that? Who helped him [Biden’s son] build the foundations? Got it? There are a lot of deals in all these. [laughter, applause]”

  6. Steve Vladeck (UT Austin law prof.): “It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category: The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS. (Spoiler alert: The Court is *never* going to hear this one.) …”
    https://twitter.com/steve_vladeck/status/1336312379408322560
    That’s the first tweet of a thread. The thread has a link to the filing.

    Unfortunately, the illness infecting the GOP who support these suits isn’t going to go away on Inauguration Day.

    1. The comment above is from me. I must have mistyped my email address.

  7. Valuable assessment, Mr. Turley.

    Perhaps President-elect Biden will wait until after the Georgia runoff to announce his most vexing appointment.

    Durham may have released an interim report by then:

    https://www.foxnews.com/politics/durham-special-counsel-russia-interim-report-ratcliffe-democrats

    Did President Obama implicitly pardon Donald J. Trump when he handed over the keys to the White House, or did he illegally set Trump up for impeachment, in collusion with Hillary Clinton and Joseph Biden?

    In the interest of national healing, President Trump should consider pardoning Obama, Clinton and Biden. Either way, we need to de-escalate from a politics of vengeance to a politics of reconciliation.

    1. Obama didn’t do either one of the things you suggest. There is no such thing as an implicit pardon, and there is no evidence of Obama having done anything illegal with respect to Trump.

      I think Mandela was wise in creating the Truth and Reconciliation Commission. I don’t think that there can be real reconciliation without truth. Unfortunately, I’m not that hopeful that Trump supporters and opponents will be able to agree on what the truth is.

      1. Did incoming President Obama not implicitly pardon outgoing President Bush?

        President Trump has publicly accused Obama, Clinton and Biden of illegal spying and Russian conspiracy collusion. Whether likely or not, and whether accepted by his opponents or not, pre-emptive pardons would be a significant act of reconciliation on Trump’s part.

        1. I don’t believe that there is such a thing as an implicit pardon. A pardon is a written legal document.

          Would your hypothetical pardons be an act of reconciliation? Sure, I can agree with that. But Trump’s a malignant narcissist (in my opinion and the opinion of some psychologists), and I can’t imagine that he would want to pardon Obama, Clinton and Biden for the crimes he’s accused them of.

  8. You cannot self pardon. By definition a pardon involves at least 2 people, the person asking to be pardoned and another person being willing to grant the request for a pardon. For anyone to talk of a president being able to self pardon himself is a mockery of democracy and the rule of law on which the US so proudly claims to be based.

  9. Trump campaign lawyer Jenna Ellis has coronavirus. What do you bet she got it from Rudy? Rudy Giuliani, the gift that keeps on giving.

    She attended a senior staff Christmas party on Friday with West Wing staff. WH caterers, custodians, guards, etc… are forced to work these events, so Ellis puts them at risk too.

    Giuliani potentially exposed lawmakers and others in multiple states. Now he’s gone to a hospital rather than treat with hydroxychloroquine, zinc, and azithromycin at home. I wonder why.

    1. What we really need to know is whether Rudy spread Covid by crop dusting the table during his ranting.

  10. Turley: you need to stop this nonsense. You claim that investigations of Carter Page and Michael Flynn proved meritless. That’s not true, and you know it. You know very well that Trump tied Mueller’s hands, preventing him from fully investigating the facts by hiding documents by refusing to be deposed and procuring the lack of cooperation of witnesses. Nevertheless, Flynn pleaded guilty, was pardoned by your chubby lame duck and is now calling for martial law to compel a new election. Why not comment on that? As I have previously noted, the people you have the most criticism for seem, for some strange reason, seem to be women. You have also developed Fox’s shorthand phraseology of calling opponents to Trump, “the left”. That needs to stop, too. There is broad-based bipartisan opposition to Trump.

    Another thing: Biden and Harris have both made as clear as possible that they’re not getting involved with DOJ or law enforcement. Unlike Trump, they understand this is improper because the DOJ is not the attorney for the White House. The POTUS is not supposed to direct DOJ on whom to prosecute. Biden, Harris and even Jeff Sessions, understand this. Trump hunted around until he found someone who won’t abide by this.

    Meanwhile, if you want to do something good for humankind, why not push for having Trump stay the hell out of saying anything about vaccines? That will literally save lives. The world has heard Trump lie repeatedly about the risk of COVID, lie about hydroxychloroquine and bully the FDA into granting emergency use approval for it and convalescent serum, only to find out that neither compound is helpful. The public knows he’s a liar, and that he bullies the FDA to do things to make him look good, despite a lack of scientific evidence, and THIS IS ONE REASON WHY THERE IS SO MUCH OPPOSITION TO VACCINES. He insists on trying to take credit for the work of the scientists who invented both the Moderna and Pfizer vaccines, and they want no part of him, so they’re refusing to appear at his campaign rally (masquerading as some sort of public informational). Trump needs to go away. Now.

    2. “You have also developed Fox’s shorthand phraseology of calling opponents to Trump, “the left”. That needs to stop, too. There is broad-based bipartisan opposition to Trump.”

      Instead he should call them “the establishment” opposition. The left and the establishment.

  11. Rubin? She reminds me by name of another one who was Sec Treas and ripped off the Social Security Fund and the Railroad Retirement Fund to line his own pockets via arranging for a pay off of his home employer Goldman Sachs losses on the Tesoro Bono crash.

    1. Sally Yates would be by far the most politically partisan Attorney General in history and more proof that the Biden administration will be the most corrupt. Is it too late to start mourning the death of a lawful democracy? There is still time for it to be buried in the same grave as respect for the constitution.

      1. What world do you live in? Trump is actively trying to get legislators to just give him the election and armed protesters are threatening state election officials at their homes. And it would be tough for anyone to be more partisan then Barr. You need to wake up and see it is the Rs that are shitting on the constitution.

  12. Trump doesn’t need it, the bulk of the nations criminals that do will get it from Biden. As Mark Twain so exactly said the US Congress is the home of America’s only home grown criminal class. Schumer, Pelosi and the Socialist Party are proof of that. Ever wonder why they refuse to take the Oath of Office and then wonder WHY the US military does not uphold it’s Oath of Office.

    I’m all for THE President vetoing the bill that screwed the entire Citizen population, forcing payment of the 1200/500 as our half of the Pelosi capitulation. AND banning all Socialists from taking the Oath of Office and from holding office. including those like Pelosi that sneak them in and then running a cover up along with a pay for play scheme.

    But probably I will be a citizen with a country and without a government as my allegiance and oath of office is to The Constitution and has nothing to do nor will it ever have anything to do with the neo-fascist socialist of the new Communist Party. Instead I support military tribunal and a choice of paredon or desaparecida.. Why? we don’t have enough jail space. don’t like it? So? Bark at the moon.

  13. What the hell is going on with Judge Sullivan? Why is he not being removed from the bench? Sullivan just granted a lineup of requests to file amicus briefs in the wake of Trump granting a pardon to Flynn. WTF?

    1. If you think Sullivan has done something impeachable, contact your Rep. and ask that the House Judiciary Committee impeach him. I doubt they’ll agree with you.

    1. The President get his picks. Like it or not. There are reasons to turn a pick down, but it is rare.

    2. Maybe Georgia voters will choose Ossoff and Warnock over the corrupt and incompetent Perdue and Loeffler.

    1. CommieToHonestDiscussion:

      “In other news:

      Spencer Hsu (Washington Post): “BREAKING Fired DHS @CISAgov head Chris Krebs sues Trump campaign, attorney Joe diGenova and Newsmax for defamation, alleging conspiracy to hawk false election claims, attack dissenting GOP officials and reap contributions. @morsedan and me”
      ******************************

      I love it when you get all atwitter thinking you’ve broken some crushing legal case that will turn the events of the day. In reality, it’s case going nowhere. Lil’ Ol’ Offended Ray Krebs here is a government official and therefore must prove the utterance or publication was made with knowledge of falsity, NYT malice or actual malice to win. Have a good time with that. He’s suffered no damages at the hands of the defendants and the words expressed were hyperbolic (and thus not to be believed literally) or non-actionable statements of opinion. Hopefully, his lawyer hasn’t taken the case on a contingent basis.

    2. Krebs in Axios interview:

      Asked how he grappled with Trump’s false claims while he was still working for him, Krebs said, “One of the questions we asked: ‘What would we do if the Russians were doing this?'”

      “The caller was inside the house,” Krebs told me. “The president is a big part of the disinformation that’s coming out there about the rigged election, but there are absolutely others.”

      “The oath that we pledged coming into office as a federal official is that you uphold and defend the Constitution from threats foreign and domestic. We upheld our oath, carried it out.”
      When asked the obvious follow-up — is President Trump a domestic threat? — Krebs replied: “There is disinformation that he is spreading. I mean, disinformation is one type of threat.”

      1. “I’m no longer going to respond directly to mespo, whom I consider a troll, but I’ll simply note that he’s wrong on the facts: Krebs isn’t “a government official.”
        ********************************
        Okay I’ll respond to your little innocent missteps. In YOUR post, Krebs was called “Fired DHS @CISAgov head Chris Krebs.”

        A quick check of just what that means leads you to a website.

        Here’s the rebuttal to your stupid. It’s the first paragraph: “Christopher Krebs serves as the first director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). Mr. Krebs was originally sworn in on June 15, 2018 as the Under Secretary for the predecessor of CISA, the National Protection and Programs Directorate (NPPD). Mr. Krebs was nominated for that position by President Trump in February 2018.”

        CommieToHonestDiscussion, How’s the view up there when hoisted on your own petard?

        https://www.cisa.gov/christopher-c-krebs

        1. Mespo–

          I agree with you but I am going to be picky and say a petard is a explosive and not an impaling stake. Stakes sound nice in this situation though. .

          1. You and mespothelioma must want to look stupid, since the CISA webpage he quoted from says
            “Archived Content
            “In an effort to keep CISA.gov current, the archive contains outdated information that may not reflect current policy or programs.”

            Which are you going to trust, outdated archived content or Trump’s own tweet firing Krebs?

                1. Aninny:
                  “It’s quite revealing that you laugh about your dishonesty, mesblow.”
                  *****************************************
                  It’s even more revealing that you don’t realize the page is archived because Krebbs is out. The laughter was directly squarely and soley at you. You and Commit need to date.

                  1. What an idiot you are mespothelioma.

                    That was my point. CTHD already pointed out to you that Krebs wasn’t a government official when diGenova made the comment that Krebs is suing over. Is your math so bad that you can’t even count, and you don’t know that 17th of the month comes before the 30th?

                    1. Aninny:
                      You never have a point and if you ever did, like this one, you’d be wrong. Krebbs was criticized in his official capacity for official acts, and that makes him a public official for purposes of NYT v. Sullivan. Not sure who’s dumber. You or the suddenly missing Committed? It’s close.

          2. Young:

            Not picky at all. The line is from Shakespeare’s Hamlet:

            There’s letters sealed; and my two schoolfellows,
            Whom I will trust as I will adders fanged,
            They bear the mandate; they must sweep my way
            And marshal me to knavery. Let it work,
            For ’tis the sport to have the enginer
            Hoist with his own petard; and ’t shall go hard
            But I will delve one yard below their mines
            And blow them at the moon. O, ’tis most sweet
            When in one line two crafts directly meet.

            — Prince Hamlet, in Hamlet, Act 3, Scene 4.

            1. Yes, and clearly it is an explosive.

              “But I will delve one yard below their mines
              And blow them at the moon”

              But the image of hoisting some of these on the end of a stake the way Vlad the Impaler did is hard to resist.

  17. This is a pointless debate. If Trump declares that he has pardoned himself, expect it to end up in court, where it will be decided.

  18. Looking at Sullivan’s continuing efforts to drag out the Flynn case after a presidential pardon it does not seem a pardon is worth as much as it used to be.

    Sullivan is becoming the Democrats Judge Freisler.

  19. Turley incorrectly writes:

    “Both investigations of possible Russian collusion were found to be without merit….”

    Understandable mistake for someone unfamiliar with the law or the Mueller Report, and Turley announces himself as both with this ignorant statement.

    Collusion is not a crime and Mueller himself stated in public that his investigation did not concern itself with this bush league category.

    So, what does Turley teach at GW? Can’t be the law.

    1. It also isn’t true that the investigations “were found to be without merit.”

      Re: Turley’s claim that “Yates recently said that she would not have signed off on the surveillance if she knew then what she knows today,” what she actually testified was “I would not sign anything I knew to include errors or omissions. … You do an internal investigation to get to the bottom of why you are presented a warrant application with errors and omissions, but my point is a simple one: that does not mean the end of the investigation, necessarily.” (https://www.c-span.org/video/?474339-1/acting-attorney-general-sally-yates-testifies-russia-investigation)

      She was also talking about the Carter Page warrant, not about Flynn. Flynn’s conversation with Kislyak was recorded because Kislyak was under surveillance, not because Flynn was being surveilled.

      Over and over again, Turley shows himself to be exceptionally sloppy with evidence. It’s not a good lesson for law students.

      2. Yes, and purposefully sloppy. He’s repeated the collusion falsehood 20 times if he’s one it once. How does a law professor make such dumb a.s mistakes unless he intends to?

        Then he mind reads Yates intentions with regards to the Muslim immigration issue as some sort of partisan planning, from a person not previously known for partisanship. Turley is a hack, and not a very good one.

      3. ““I would not sign anything I knew to include errors or omissions. … You do an internal investigation to get to the bottom of why you are presented a warrant application with errors and omissions…”

        She’s a liar.

  20. “She engineered her own firing at the hands of Trump – a virtual canonizing act for the media and many liberals.”

    Attorney General Sessions did the same. Attorney General Barr seems to be attempting the same.

    There is a pattern here.

    1. And count me as being curious about what Yates did way back when to really piss off the professor because he seems to hate her as much as he does Jennifer Rubin.

      2. Breathing our good air to no purpose for starters. Seriously she did what Comey tried and they both failed. A form of coup.

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