Limitations on Trump’s abuse of the pardon power


Jack Goldsmith, “Trump Loves to Use the Pardon Power; Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses, New York Times, November 10, 2020 (5:00 a.m. ET).

The French Administrative Law and now civil law principles of abus de droit (abuse of rights) and abus de pouvoir (abuse of power) are relevant to Donald Trump’s abuse of the pardon power granted to the President in the U.S. Constitution. These principles are now “general principles of law” which should be upheld by the U.S. Supreme Court if a case involving President Trump’s abuse of the pardon power comes before it for decision.

The much talked-about possibility of Trump pardoning himself would be a highly risky gambit on his part. Not only does a 1974 Justice Department opinion exclude this possibility, but the principle of abus de pouvoir also points to its invalidity. Leaving this issue to the courts for decision could be very dangerous for Trump.

If the President wants to stay out of prison after he leaves office on January 20, 2021, his best bet would be to resign as part of a deal with Vice-President Mike Pence which would grant him a pardon for all federal crimes.

Yet even if he secures such a federal pardon, Trump will remain subject to state prosecution for state crimes he may have committed. There appear to be a number of state crimes for which he might be charged.

Given his potential criminal liability for state crimes, and the dubious quality of any self-pardon he may be tempted to declare and assert, his best bet for staying out of prison appears to be to resign and get his pardon from Pence, and flee the United States and move to a country which 1) would be a desirable place to live, for Trump himself and also for his collaborators (co-conspirators); and 2) a country which does not have an extradition treaty with the U.S., or even if it does which affords him reasonable prospects for reaching accommodations with local officials which might make his actual extradition highly unlikely.

The Trenchant Observer has published a series of articles on the subject of where he might flee.

Where can Trump go to escape the law?


1) “Where can Trump go to escape the law? Russia?” The Trenchant Observer, October 17, 2020.

2) “Where can Trump go to escape the law? The Bahamas?” The Trenchant Observer, October 20, 2020.

3) “Where can Trump go to escape the law? China?” The Trenchant Observer, October 21, 2020.

Whatever his choice of relocation country, he would be well-advised to act soon.

The Trenchant Observer