Trump and Pence – “Let’s Make A Deal”; Precedents Suggest Resignation in Return For a Blanket Pardon Is the Best Way Out
Trump Must Not Be Permitted To Serve Out His Remaining Term
WASHINGTON, D.C. (January 9, 2021) - The Capitol riots have produced growing cries that Donald Trump must not be permitted to serve out his remaining term as president, and that he must be removed from office forthwith, either by operation of the 25th Amendment, or by impeachment.
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At the same time, as threats of criminal prosecutions from a variety of sources grow stronger, it is reported the Trump is considering pardoning himself, something he has long maintained he was the authority to do.
But all these conjectures have major problems, says public interest law professor John Banzhaf, who postulates an equally probable scenario based upon two recent historical precedents.
It appears unlikely, despite the outrage over the riots and the President's actions regarding them, that Vice President Mike Pence and a sufficient number of cabinet officials would use the 25th Amendment to remove him from office, especially for this short period of time.
Time would also be a problem in seeking to impeach Trump, and to have a full trial in the Senate, before his term would end naturally, and it is also unlikely that a two-thirds supermajority of senators would vote to remove him from office.
Resignation After A Blanket Pardon
A self pardon also has drawbacks since a court might well rule after he left office and was charged with a felony that a sitting president cannot issue a pardon to himself, especially an blanket pardon for any crimes Trump may later be accused of.
Moreover, the issuance of such a self pardon could make it more likely that he would be charged with a federal crime, since a Justice Department would not want to establish - by letting the precedent go unchallenged - that a president is immune from prosecution while in office, and can then obtain permanent immunity for all federal crimes simply by issuing a pardon to himself.
An equally likely scenario, says Banzhaf, is that Pence would be very eager not to have Trump remain in office but, recognizing the problems of using the 25th Amendment or the impeachment process to achieve that goal, would instead offer Trump - author of "The Art of the Deal" - a deal he might find hard to resist: Trump would resign immediately in return for a blanket pardon by Pence.
In justification, Pence could cite the blanket pardon President Gerald Ford issued to Richard Nixon after he stepped down as precedent. There was widespread suspicion that it was all part of a deal - resign and be pardoned, or engage in a prolonged uphill battle to remain in office - although it was never proven.
Also, when it became clear the Nixon very strongly wanted to be rid of Spiro T. Agnew as his vice president but could not simply fire him, a deal was worked out in which Agnew agreed to resign his office and plead nolo contendere to accepting bribes, but do no time in prison. Indeed, notes Banzhaf, Agnew was not even required to return the money he had accepted in illegal bribes.
Banzhaf later successfully sued Agnew to force him to return the money he had received in bribes, plus interest, to the State of Maryland. Banzhaf was also briefly involved in the Agnew matter, and played a role is causing Nixon to be investigated by a special prosecutor.