Why you should care
Because if the president pardons his son, it would not be an entirely unprecedented move.
Based on OZY’s hit podcast The Thread, which delves into surprising connections in history, The Mueller Thread weaves together the strands linking the sprawling investigations around President Donald Trump.
The last day of Bill Clinton’s presidency in January 2001 was chaotic to say the least. With just hours to go before George W. Bush was sworn in, Clinton issued presidential pardons to 140 people, including onetime Whitewater business partner Susan McDougal, heiress-turned-bank-robber Patty Hearst and financier Marc Rich. Some of these pardons were controversial, some were not. One was historic. And it’s that last-minute Clinton pardon that could serve as a political life raft for another president who has already started contemplating the scope and propriety of his own pardoning power: Donald Trump.
In the wake of the indictment of Trump adviser Roger Stone, arrested on charges of lying to Congress, obstruction and witness tampering, the legal noose is tightening around Donald Trump Jr. in the investigation helmed by special counsel Robert Mueller. Not only are there hints in the Stone indictment that a senior Trump campaign official was involved with Stone in reaching out to WikiLeaks about the release of stolen Hillary Clinton campaign emails, but several Democratic members of Congress are alleging Don Jr. hasn’t been entirely honest in his congressional testimony about matters including WikiLeaks and negotiations for a Trump Tower Moscow. Knowingly lying to lawmakers under oath — as we already know from the charges against Stone and former Trump lawyer Michael Cohen — constitutes a federal crime. But while one Roger’s recent arrest has helped place the president’s son in legal jeopardy, another Roger’s legal troubles might be his salvation.
Enter Roger Clinton, the perfect Get Out of Jail Free card.
Let’s go back to the mid-1980s. While a young Roger Stone was raking in lobbying dollars representing brutal Third World dictators with his business partner Paul Manafort (Trump’s future campaign manager and current resident of a Virginia jail), Roger Clinton, the half brother of a future president, was serving prison time for selling cocaine to an undercover police officer in Arkansas. Clinton had pleaded guilty to the crime, but he didn’t have much choice: The whole exchange had been videotaped and his arrest came during a sting operation approved by the governor of Arkansas … his brother Bill, who knew that Roger had cocaine problems. Bill also let his brother serve out his sentence. Talk about tough love.
So it is perhaps not surprising that in his final days as president, Clinton’s thoughts turned to making some legal amends to his troubled brother (a free spirit and musician who had been given the Secret Service code name “Headache”). Clinton’s use of the presidential pardon to erase Roger’s criminal record was largely drowned out at the time amid the controversy surrounding other pardon recipients like McDougal and Rich. It remains the only time a president has used this unique constitutional power on a family member … at least for now.
President Trump has refrained from using his pardon power thus far in connection with the Mueller investigation, but if Don Jr. is indicted, all bets are off. As early as July 2017, The Washington Post reported that Trump had begun asking his advisers about his ability to pardon aides, family members and even himself. But invoking such a remarkable executive power is not without costs, and these costs are largely political, not legal.
Pardoning a family member is especially likely to be regarded as an abuse of power, even an act of political suicide. And remember Trump, unlike Clinton in 2001, is up for re-election. While Trump remains curiously impervious to the rules of politics, it never hurts to have political cover for a risky executive order.
Enter Roger Clinton, the perfect Get Out of Jail Free card for a president looking to give his own relative a Get Out of Jail Free card. After all, Trump has invoked Clinton era transgressions before to distract from his own: Remember the press conference he held with Paula Jones and two other Bill Clinton accusers in the wake of the Access Hollywood tape? You can already hear the reverberations of “Roger Clinton” echoing across Fox News and other conservative media outlets.
To be sure, a Don Jr. pardon does not solve everything. For one thing, it would apply only to federal crimes, not state ones. And, as Harvard law professor Laurence Tribe has pointed out, a pardoned individual is one who is no longer in legal jeopardy himself, and therefore cannot invoke the Fifth Amendment protection against self-incrimination. Don Jr. would thus be forced to give potentially incriminating testimony about others, including his father, or risk being held in contempt. Of course, Trump could pardon his son for that too, but such a move would look, walk and quack a lot like obstruction of justice.
Bill Clinton took more than 15 years to pardon his brother, waiting until his political career and his presidency were hours from being over. Given the political and legal risks of a potential pardon for Don Jr., it would make sense for Don Sr. to wait until things play out more as well. Such patience is more easily preached than practiced, however, especially if it’s your namesake who is being indicted, arrested in the early morning hours by the FBI live on CNN, tried and potentially imprisoned. In such a case, would Trump come to his son’s rescue? Or would it be time for some more tough familial love from an American president?
Read more: The ultimate Trump move to end the Russia scandal — pardon himself?!