Trump's blanket pardon plan has a loophole — and there's nothing he can do about it

President Donald Trump has had no qualms about abusing his pardon authority during his second term, reportedly promising preemptive pardons to anyone close to him before he leaves office, but there are still legal avenues available to get around this "pardon-palooza" threat.

Kimberly Wehle is a legal scholar, author and professor at the University of Baltimore's School of Law. On Wednesday, she published a piece for The Hill breaking down Trump's corruption of the pardon system and his alleged promise to issue blanket pardons to his officials and allies. The president recently suggested he might offer them to " everyone who has come within 200 feet of the Oval Office," which Press Secretary Karoline Leavitt suggested was a joke, while also insisting that his pardon authority is "absolute."

Trump's quip should not be taken lightly, however, as Wehle explained that, if he were to go ahead with pre-pardons for "anyone who may have committed crimes at his behest," it is not likely that he would face much legal scrutiny, or at least, none that could stick.

"Thanks to his friendly majority on the Supreme Court, Trump is now likely immune from prosecution for many crimes conceivably committed in connection with his pardons. That is because in Trump v. U.S., the court manufactured a doctrine of criminal immunity for presidents. This effectively killed off former Special Counsel Jack Smith’s indictment over Trump’s alleged role in inciting the Jan. 6, 2021, attack on the U.S. Capitol."

She continued: "In that ruling, the majority deemed the pardon power 'core' to the president’s constitutional powers and thus absolutely immune from legal scrutiny — possibly even if a pardon is issued in exchange for a bribe... Couple presidential immunity with the court’s view that pardons are a 'core' presidential responsibility and thus legally inscrutable — a notion likewise announced for the first time in that case — and the Supreme Court effectively greenlighted an organized crime spree in the Oval Office."

Wehle argued that legal accountability could still be pursued in jurisdictions where Trump's presidential pardons cannot reach, most notably in state-level prosecutions. Trump himself has reportedly fumed at his inability to do anything about his Manhattan "hush money" felony conviction for this very reason. His pardons also cannot "touch civil liability for wrongdoing, either, so money damages for executing unlawful presidential orders or programs are still on the table."

"Of course, any future state prosecutions would hinge on the existence of state governments willing to uphold law over party politics," Wehle explained. "Nor would every state have legal jurisdiction over crimes committed in Washington, D.C., for example. But if the goal in this moment is (as it should be) deterring Trump acolytes from risking their personal liberty out of loyalty to him, the threat of state criminal liability should be taken seriously now."

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