Last night my husband and I were watching “All In” with Chris Hayes and there was a lot of speculation about Trump pardoning Manafort, et al. I got curious about Watergate pardons and did a search. Turns out that except for Ford pardoning Nixon, there was only one other – Reagan pardoned one of the burglars. But in my search I turned up this very interesting commentary by Jill Wine-Banks (Three ugly Watergate lessons for President Trump, Chicago Tribune) who was an Assistant Watergate prosecutor. Written in July 2017, it contains information I had never heard before. Wine-Banks outlines three things one should think about before accepting a Presidential pardon.
First, it is an admission of guilt. I had no idea, but the controlling case law is a 1915 Supreme Court decision, Burdick v. United States:: 236 U.S. 79 (1915).
The first thing President Trump and voters should know is that anyone who accepts a pardon admits guilt by doing so. That means, even if Trump could pardon himself — a long-debated legal gray area — as well as any family members and aides, he and they would be admitting guilt by accepting the pardon. And under the Constitution, the president’s pardon power does not apply to impeachment proceedings that could — and might well — be triggered by his pardoning himself or even the others.
That is the result of the U.S. Supreme Court’s 1915 Burdick decision. It was the basis of President Ford’s written explanation to the House Judiciary Committee regarding his pardon of Nixon. For the rest of his life, Ford carried a portion of the Burdick decision in his wallet.
In 2014, I appeared on a panel at the Gerald R. Ford Presidential Library and Museum in Grand Rapids, Mich., with Benton Becker, the lawyer Ford sent to Nixon’s San Clemente home to offer the pardon. Becker described his meeting with the recently resigned president as painful. It was his duty to explain to Nixon, as instructed by Ford, that if he accepted the pardon, it was an admission of guilt. Becker reviewed with Nixon a copy of the Burdick decision that he had brought with him to California.
Nixon accepted his guilt in the Watergate controversy by accepting the pardon. Anyone Trump pardons would be doing the same.
Second, the pardoned person loses access to the Fifth Amendment.
Second, Trump should know that anyone who accepts a pardon loses his or her Fifth Amendment right against self-incrimination and can be forced to testify under oath. The resulting testimony can be used against President Trump. Of course, should anyone pardoned refuse to testify or testify falsely, the person can be jailed for that offense.
Wine-Banks’ third reason is that pardons would not save Trump politically.
Third, the president should understand that his potential use of the pardon and the possible firing or limitation of special counsel Robert Mueller’s investigation are likely to cause as much backlash as such conduct did during Watergate.
I hope that some lawyers are thinking about Burdick and trying to explain it to clients and to the President. Would he really want to have Don Jr. or Ivanka admit guilt? He probably doesn’t care about the others.
We are trapped in a drama few of us want to watch, but we can’t turn away from watching. Look for more surprises.