Pardon Me (Take-Two): But the Manhattan Indictment of Trump Matters

Two months ago, I wrote that the Manhattan indictments of Former President Trump are way more important than people recognized. If Trump didn’t pay hush money to Stormy Daniels, she could have gone public with her account of their soiree only days before the election. Given how close the 2016 race was, the chance that it could have affected the outcome was very real.

The connection between Trump’s hush money payoffs, the ‘bookkeeping’ errors to cover up the payments, and the election will be on display when the case goes to trial in Manhattan. But in the meantime, Special Counsel Jack Smith has indicted Trump in south Florida for violations of the Espionage Act related to his willful retention of classified documents and obstructing justice.

This is good. Clearly, accountability is coming, and justice finally seems to be around the corner. Hopefully, people across our country’s political spectrum will once again fully embrace the rule of law.

Unfortunately, that might not be how it turns out. Tens of millions of Trump supporters are likely to continue to believe the Big Lie about the election, and Trump will do everything he can to unravel the truth, undermine and attack anyone who works to hold him accountable, and stoke the flames of division and anger.

Like a game of follow the leader, leading Republicans are saying they are outraged at the federal indictments. Regardless of the strength of the evidence and the danger to America’s national security of unsecured classified documents floating around Trump’s ritzy club, they claim that the charges are political.

Of course, nothing could be further from the truth. So, it’s pretty bad…but frankly it can get worse. What happens if Trump is convicted on the federal charges, which seems likely given the strength of the evidence, but a Republican – Trump or someone else – is elected president?

One of the unilateral powers of the President in the Constitution is the power of the pardon. According to Art. II, Sec, II, Clause 1, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

Given the mood of the Republican base and their unquestioning belief in allegations of a politicized prosecution and weaponized government, it seems rather likely that a future Republican president (including Trump, himself) will immediately pardon Trump. Candidates Nikki Haley and Vivek Ramaswami have already indicated a desire to pardon him if elected. They will remind us ad nauseum that President Ford pardoned former President Nixon – a bad choice, in retrospect – and that we’ve never indicted or convicted a former president before. As for Trump, he already issued purely political pardons of criminally convicted Manafort, Stone, Flynn, and others, and would likely use the power to clear himself.

In other words, as much as the federal charges are major steps toward accountability, even convictions on all 37 counts might not bring us real and permanent justice.

This brings me back to the Manhattan indictments and why they are so important. Remember, while there is no check by Congress or the Judiciary on the federal pardon power, *it is limited to federal crimes.* State convictions cannot be undone by a federal presidential pardon. So, even if a Trump is pardoned for a federal conviction stemming from stealing the federal government’s most sensitive documents, a conviction in the Manhattan case will stand.

Trump is also facing potential charges by an Atlanta area prosecutor for his efforts to overturn the election there. But, Georgia has a Republican governor and could have one into the future. Would a Republican governor of Georgia pardon Trump? Maybe. Is it worth the chance? No.

The recent federal indictments of Trump are well-deserved and long-past-due. In reality, though, the only way to ensure justice will be permanent is to get a conviction in New York where the chance of someone pardoning Trump and, once again, unleashing him on the nation is very small.