By: Dennis Rohatyn

Ever since Donald Trump left office, there has been talk—speculation, to be more accurate—that he issued a pardon for himself and several family members while he was still President, but kept it a secret, to be used only in case of an emergency, such as (but not limited to) federal prosecution for the Capitol riots on January 6, 2021, income tax evasion, and other alleged crimes.[1]   Since a “pocket pardon” has not (to anyone’s knowledge) ever been granted to (or used by) anyone in American history, there is no precedent for it, yet there have been moments in our past when Presidents (and their successors) pondered it, or were tempted to indulge in it, either for their own or someone else’s sake.  Like a “get out of jail free” card, to which it has aptly been compared,[2] a pocket pardon has the advantages of being hidden until the last moment, being used only as a last resort, and of being sprung as a surprise against an unsuspecting legal adversary, it is very appealing, both as a secret weapon of (self-) exoneration, and as a way to conceal dubious motives or unprincipled actions for as long as possible, if only to soften (if not avoid) the judgment of posterity.

Michael Cohen, Trump’s former lawyer and “fixer,” has been convinced all along that Trump has a pre-emptive pardon stitched in his coat pocket, or perhaps several of them.[3]  Even as Joe Biden was inaugurated, doubts and suspicions were raised, elevating “the paranoid style” to new levels of cynical but by no means radical chic.[4] Since then, a number of critics have joined the chorus, including attorneys whose respective reputations for probity and integrity dwarf those of Mr. Cohen.[5]  It is beyond dispute that Donald Trump is capable of that. The only question is, if he did issue a (self-) pardon without telling anyone about it, and then uses (or invokes) it at a later date, will he succeed? Can he get away with it?

No one seems to know the answer, since such a stunt (or procedure) has never been tried. No doubt it would be challenged, but on what grounds? The Constitution is mum on this point, except for ruling out pardons pertaining to an actual impeachment (trial). Since Trump has already survived that ordeal twice, he has nothing more to fear on that score.  Therefore, the only question is whether he can curtail or prevent any charges from being brought against him in federal court by pulling a golden ticket out of a hat, then telling judge and grand jury to eat the words of their indictment, but offering them one chocolate bar as a consolation prize.

Trump certainly would do that if he could.  Can he?  No, not in my law book.   But let’s get things straight:

  1. Even if Trump has issued (himself) such a pardon, it has no effect on any of the state and local charges that he faces, in New York and elsewhere.  That was understood before he left office, and is unchanged.
  2. Some eminent jurists claim that issuing a pardon entails an admission of guilt. Indeed, there is one (and only one) Supreme Court case in which one of the Justices said so, outright.[6]  But that was a dictum, hence not part of the decision itself.  Moreover, the Justice rightly distinguished between tacit admission and explicit confession of guilt. Trump is said to be worried about the “optics” of self-pardon, for that very reason.   But image (and vague presumption) do not constitute proof.   Pardons look bad, but it does not follow that those who receive them are bad, or that they (necessarily) did bad things, for which they deserve punishment.
  3. The context matters, as well. In the case in question, a courageous reporter during WWI refused a pardon from President Wilson, as he felt that he had done nothing wrong.  The Court ruled in his favor, concluding that he had a right to reject the pardon, however magnanimous or well-meant it might be.  We’ve come a long way since then—the wrong way.   Alas, Burdick isn’t a precedent but a quaint anomaly—an example of chivalry, as noble as Don Quixote and (alas) equally archaic.  In a world where defendants routinely plead the Fifth and rarely take the witness stand, it is hard to fathom such moral rectitude, except under the rubric of “Capracorn.”[7]

That may explain why pundits and legal scholars have so much trouble comprehending the issue, to the point where it even becomes debatable. So let’s ask a simple question: what is a pardon? A pardon is an act of formal absolution granted to someone who is accused of unlawful conduct. Accused, not (necessarily) convicted.  But far more importantly, formal as opposed to informal: public, not private; open, not hidden; and now, not later.

Absolution is meaningless unless it is ceremonial. It is not kept in a drawer, under lock and key.  It is announced (“hear ye, hear ye”) to the world.[8] It is not delayed or postponed, but takes effect immediately upon being signed and witnessed. It is a solemn ritual, not a clandestine operation. It is like a graduation ceremony, as opposed to an exchange of spies under cover of darkness. [9] In this respect, it is like baptism, christenings, weddings, or taking the oath of office–which Trump has repeatedly violated, with callous and defiant indifference.  It is not at all like a “pocket veto,” or some other legislative and strategic maneuver, albeit one that is licit by the established rules of the political game. Shrewdness may be smart, but it is not wise.

Hence there is no analogy between a “pocket pardon” and an actual (or proposed) one, any more than there is between a forged passport and a valid one, except that both documents appear to say the same thing—and thus might fool someone into mistaking one for the other. Indeed, a “pocket pardon” is a contradiction in terms, just as a forged passport isn’t a passport, but a seductive imitation: a fake, like its author. Since a “pocket pardon” is by definition bogus, it follows that any such covert, delayed pardon that Donald Trump might have issued, whether to himself or someone else, is bogus, even if it were signed and witnessed, since it was neither announced nor made public in any other way at the time it was dated, which would have to be on or before January 20, 2021.   No pardon of that kind is legitimate, either in principle or by Presidential fiat, under any circumstances.

Indeed, it undermines the very meaning of a pardon, even for those who are not guilty of any wrong-doing, and who require neither a show of compassion and contrition, nor a formal apology from conscience-stricken authority.[10]   Apart from rare (and refined) instances such as Burdick, there is no loophole for a would-be sophist to dive through: no evading the Orwellian absurdity of issuing private pardons (paradoxical in themselves) for public deeds.[11] Indeed, self-exemption and self-privilege are merely corollaries of that question-begging tactic.  As such, they are consistent in their inconsistency, but that is all that can be said for them.  As a consequence, whatever fears we may have about Trump and his whole entourage, from a logical and jurisprudential standpoint, there is no need to examine the matter at greater length, or to deduce all the consequences that follow from self-pardon,[12] except as corollaries of primal folly, or as an exercise in going through the looking-glass of apprentice tyranny, etched deeply in vaulting totalitarian ambitions.   Yet it is necessary to address the collective failure of nerve that so puzzles the collective will, and paralyzes us into numbed resignation in the face of a mounting cascade of Big Lies–enough to make even Adolf Hitler blush.[13]

Perhaps it is the result of living in a secular (and cynical) society which has long since given up on defending its own standards of moral propriety. Perhaps it stems from the “death of God,” which renders unto Caesar but regards piety as passé, conflates might with right, and is at a loss even to understand its own customs, except as pure sentiment, like the incantations of stage actors impersonating ancestral forms of worship that have lost their power to compel human assent. A pardon strikes us not as a covenant with God (or, in lieu of that, the “civic religion”) but as a pious gesture, and an antiquated belief.[14]  The problem is, it is not mere superstition, nor is it just words on a piece of paper, without binding force, except on those who agree to it, like the contract for “services rendered” that politicians sign with their paramours, only to rescind when it suits their convenience.   It does have binding force—but it cannot be done on a whim, and in any way, shape or form that the Chief Executive chooses.   It is a social act, not an anti-social (sic) one.[15]  It is a testament, not a travel voucher–nor a visa to be presented at the border crossing (sic) to the undiscovered country, but not beforehand.

Whatever the causes of our social malaise, and our spiritual discontent,  the consequences are both clear and unmistakable.  So are mistakes and fallacies committed by supposing that it is logically possible for a “pocket pardon” to be conceived, produced and to pass itself off as genuine.   As self-serving acts go, it is hardly different from most of what Trump did while he was in office.   But question-begging is not the same as self-aggrandizement.  The latter is limited only by time, space, and resources, not to mention sheer chutzpah and duplicity. But the former is against the laws of logic, which are still sacred, even in a world that is both irrational and immoral, and cannot distinguish between truth and falsity even to save itself from gross inconsistency.   If there is but one lesson to be learned from the rising tide of anxiety about pocket pardon, it is one that Lincoln taught as he reflected on the cost of the civil war, not simply in blood and treasure but in the ways it left us spellbound, unable “to think anew and act anew,” and utterly powerless to adapt to new circumstances. “We must disenthrall ourselves, and then we shall save our country.”[16]  Disenthrall, disillusion, but not discourage or dismay. Wallowing in despair is a luxury we can no longer afford; the “situation” is both too urgent and too perilous to permit it.[17]

Perseverance doesn’t guarantee earthly salvation, but it rewards those who are determined to be free.  We must avoid self-defeating prophecy (if he can do it, he will; if he can’t, he’ll do it, anyway). Fatalism is self-refuting.  If que sera, sera is true, why debate it?   The mere attempt to convince anyone of its merit as a thesis presupposes what it denies.    Freedom of the will is not an abstraction; arguing that it does not exist invites immediate reductio.[18] That is why Americans still have a hard time reconciling faith with good works—a formula bound (sic) to induce hypocrisy at both ends, as it whipsaws us between hope and despair, personal success and predestined failure, as gifts of grace or disgrace in the lottery of life. But we must refuse the gift, and skip the pardon. Calvinism notwithstanding, on earth as in heaven, “God’s work must truly be our own.”[19]  Faith vs. reason is a false dichotomy; only abiding faith in reason escapes deadly dialectical ends to reveal the destiny of liberty without risking an antinomy between divine dispensation and exceptional luck, patient merit being sidelined by doom and gloom.[20]

So let us resolve to take pardons out of the closet once and for all.   We need the space (and peace of mind) to make ample room for Donald Trump, to experience a rebirth of free thought, and put willfully impotent paranoia behind bars, at last. Catch a falling star and stash it in a vest pocket. Then let justice be done, peeking through leaden clouds of gray, while truth goes marching on, in the care-worn but proud uniform of democracy.[21]

[1] Cf. Tommy Christopher, “Can Trump Really Issue Secret Pardons for Himself and His  Family?” (Jan. 20, 2021).   Christopher quotes Lawrence O’Donnell of MSNBC, who was perhaps the first to mention the stratagem, albeit on social media.

[2] Tom Boggioni, “Ex-Prosecutor Delivers Bad News to Trump About His Reported ‘Self-Pardon,’” (Feb. 14, 2021).   Attorney Chuck Rosenberg, interviewed by  Jonathan Capehart on MSNBC, was unimpressed by Trump’s gambit, but conceded that there is nothing in the Constitution expressly forbidding it.  He did not say how one might prevent it.

[3] Daniel Chaitin, “Michael Cohen bets Trump has secret ‘pocket pardons,’, Jan. 24, 2021.  The story first appeared in The Washington Examiner, a leading apologist for the Trump regime.

[4] Cf. Richard Hofstadter, The Paranoid Style in American Politics [1965], new fwd. Sean Wilentz [New York, 2008).  Richard Nixon, whose paranoia knew no bounds, was spared the trouble of granting himself a blanket pardon, thanks to Gerald Ford, who was careful not to overstep the limits of cronyism while letting Nixon off the hook.

[5] Brian Tyler Cohen, “Prosecutor issues GRIM new for Matt Gaetz,” OccupyDemocrats, podcast (April 12, 2021).  Cohen interviewed retired prosecutor Glenn Kirschner, who brought up the subject of Presidential self-pardon..

[6] Burdick vs. United States, 236 US 79 (1915).   Justice Joseph McKenna wrote on behalf of the  majority, but his opinion was not part of the verdict.  As precedents go, this one is as strange as it is miraculous.  We shall not witness its like again, unless it be at Calvary or Gethsemane.

[7] Cf. Joseph McBride, Frank Capra: Catastrophe of Success (New York, 1992) and his recent book, Frankly: Unmasking Frank Capra (Berkeley, CA, 2019).

[8] Richard Hofstadter paid Lincoln an unintended compliment when he ridiculed the Emancipation Proclamation for having “all the moral authority of a bill of lading” [The American Political Tradition and the Men Who Made It [1948], 2nd ed., fwd. Christopher Lasch (New York, 1973), 169].  Lincoln’s rhetorical genius was never surer than in the absence of grandiloquence.  He abolished slavery as a “matter of fact,” and that was that.  The Confederacy got the message, sans bombast or pretense.   Solemn rituals are dramatic without being histrionic.  Dodging one’s sworn duty to uphold the US Constitution demands dismissal—plain and simple.

[9] To avoid complications, I will not compare it to a “speech act,” or classify it as a “performative utterance,” while admitting the family resemblance.  See Pintip Hompluem Dunn, “How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis,” Yale Law Journal Vol. 113 (2003), 493-531.  Derrida’s thesis that writing (écrit) underlies speaking (parole) is neither Biblical nor historical; on the contrary, there is no “trace” of logos, only a dim echo of the whirlwind, be it the Big Bang or John 1:1. Alas, deconstruction works in mysterious ways, none of them quite kosher.  In the absence of God, we must heed the present, without misreading the past—or declaring our independence from plain truth.

[10] That is precisely why Judge Learned Hand ruled that a President may issue a pardon for someone who has never been convicted [US vs. Burdick, 211 Fed 492-93 (1914)], a year before the Burdick case reached the Supreme Court.   Likewise, a “pre-emptive” pardon does not assume guilt, since it may be granted for other reasons.  As Charles De Gaulle rebuked French reporters who accused Jean-Paul Sartre of treason during the Algerian revolution, and urged the newly elected President of the Fifth Republic to jail Sartre for his much-publicized dissent, “one does not imprison Voltaire.” Voltaire was indeed imprisoned, as well as exiled—but France learned from that mistake, as it did from the Dreyfus affair.  For every Voltaire, there are a thousand reprobates.  Each one still has a right not to incriminate himself.  But there is no right to self-exonerate; let alone, do so on the sly.

[11] Cf. John D. Feerick, “Pardoning Power of Article II of the Constitution,” NY State Bar Journal Vol 47 (1975), 7-11, 42-44.   Lawrence Tribe and other Constitutional scholars have made no advance since the Nixon era in countering the semantic depredations of political scoundrels. Hence they are constantly being taken by surprise by the flimsiest arguments, then succumb to non sequiturs as grotesque as the Athenians who sentenced Socrates to death committed.

[12] “Reflexive Justice,“  Political Animal (Jan. 15, 2021); “Re-Reading the Capitol Riot Act” (in press).

[13] Mein Kampf [1926], tr. Ralph Manheim [1943], intro. Abraham H. Foxman (Boston, 2002), esp. Ch. VI, 176-86.   Hitler’s exact account of propaganda exemplifies its own pathology. Thus his text is both diagnostic and confessional; homicidal by design, suicidal by default.

[14] Rousseau foresaw the dilemma of the “secular city” even as he substituted earth for heaven, humanity for divinity and community for immortality in The Social Contract [1762].  The chief problem is not that these concepts are inherently “vague” but that unless reason is infused with passion, both are useless.  Tr. Victor Gourevitch, 2nd ed. (New York, 2018), IV.8, 150-51.

[15] If the business of America is business, then the President’s business is everyone’s business, especially when it is shady business.   Conversely, if something is “none your business,” then it is none of Calvin Coolidge’s, either.  The 14th Amendment guarantees equal protection.   It does not guarantee immunity from prosecution.

[16] “Annual Message to Congress” (Dec. 1, 1862); Roy P. Basler (ed.), Collected Works of Abraham Lincoln (New Brunswick, NJ, 1953), Vol. 5, 537.   Unlike Max Weber and his heirs, Lincoln’s disenchantment with the universe was not a fatal obstacle to moral or political redemption, but a precondition for it.

[17]  “Last Public Address” (April 11, 1865); Basler, ed., CWAL, Vol. 8, 405.  Lincoln’s’ ‘situational awareness’ prompted him to place that word in quotation marks.   The semantics of self-reference unites text and context, while Lincoln pronounces final sentence on the new Constitution of Louisiana.  Exit the stage.

[18] Cf. William James, “The Sentiment of Rationality” [1882]; John J. McDermott (ed.), The Writings of  William James: A Comprehensive Edition (Chicago, 1977), 317-42.

[19] “Inaugural Address,” Jan. 20, 1961; Theodore C. Sorensen (ed., intro.), “Let the Word Go Forth.”  The Speeches, Statements and Writings of John F. Kennedy, 1947-1963 (New York, 1988), 15. Thurston Clarke, Ask Not: The Inauguration of John F. Kennedy and the Speech That Changed America, new aftwd. (New York, 2011) overlooks the fact that the change was for the worse, not because JFK died in office but because of what he did (or failed to do) while he was alive. What he did not accomplish in fact, the myth of Camelot concealed, until the secret was out.Praise the Lord, and pass the indictment.

[20] This is the crucial point that John Ralston Saul misses, in Voltaire’s Bastards: The Dictatorship of Reason in the West (New York, 1993).   What went wrong since the Enlightenment did so despite it, while those who still rebel against it would not exist, much less thrive, without it.

[21] For Ramsey Clark (1927-2021), brave soldier of human misfortune: ray of sunshine in a twilit world.

A native New Yorker, Dennis Rohatyn took his PhD at Fordham. He moved to the West Coast in 1977. His works include “Out of My Mind,” “The Flight of Theory”, and “Cartesian Requiem.” He writes about everything, but his true vocation is the inhuman condition.

Image: PAM illustration