Can Donald Pardon The Trump Organization?

Old Post Office Exterior.

By David Schleicher

A Facebook friend recently posed this question: can President Trump pardon his own company, The Trump Organization? I conclude he can, but that is not the last word.

Power to Pardon is Broad

The presidential power to grant reprieves and pardons authorized by the Constitution (art. II, §2) is a broad one, self-limited only in cases of impeachment.  However, it applies only to offenses against the United States: the presidentially-pardoned nonetheless may face prosecution under state law.

If you doubt that the power to pardon could really be as broad as a literal reading of the constitutional text suggests, consider that Presidents Lincoln and Johnson pardoned broad classes of those who had engaged in treason against the United States by supporting the South in the Civil War.

I align with those who do not believe a president can pardon him or herself. The pardon power has roots in the monarchy, but in the end the president is a public servant and not a king. Allowing a president to pardon him or herself runs contrary to the founders’ intent that a pardon not be available as an end run on Congress’ power to impeach.

No Self-Pardon, But Company Has Independent Existence

Assuming a president can not self-pardon does not necessarily answer the question of whether a president can pardon a company for which the president is the primary owner, as is the case with President Trump and The Trump Organization conglomerate. For a corporation has an existence that is separate from its owners. A fundamental reason for incorporation is to limit personal liability.

The Supreme Court’s Hobby Lobby decision muddied the waters a bit, extending religious freedom rights to a corporation, but doing so in part because the company was a closely held corporation, owned and controlled by members of a single family. While The Trump Organization is tightly owned and managed by Trump’s immediate family, it also has at least one non-family manager and its many subsidiaries and affiliates involve a network of others that extends well beyond immediate family.

One might argue that Donald Trump symbolizes all that is The Trump Organization and it all that he is. in fact, you might get that impression from the company’s website. On the other hand, it lives on even though he is not actively managing it and it presumably would even if he were to unexpectedly die. So, while pardoning The Trump Organization might benefit Donald Trump, it is unlikely to fall prey to the no-self-pardon rule.

Constitution Doesn’t Mention Pardoning Companies

It’s true that the Constitution does not directly say that the power to pardon extends to corporations. But on the other hand, it doesn’t exclude that possibility, such as by saying it applies only to “humans.” Entities of a corporate nature date back to at least Revolutionary War days…remember The East India Company whose tea was tossed into Boston Harbor?

As Humpty Dumpty bragged of himself in Alice in Wonderland, when courts in constitutional law define a word, it means what they choose it to mean, neither more, nor less. For example, the Supreme Court has held that cities are within the definition of “persons,” when addressing who may be sued for certain civil rights violations.

Pardon People, Pardon Companies

That is, even if the pardon provision said “persons,” the Supreme Court might still read it as “persons, or corporations.” It would seem an odd result to many to say that a corporation can be criminally prosecuted, but can’t benefit from a pardon.

U.S. Department of Justice guidelines for prosecuting corporations suggest an even-handed approach: “Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment.” Among the considerations DOJ identifies for determining whether to prosecute a company are common sense things like how pervasive the wrongdoing is within the company and how high up, whether it has a history of similar misconduct, and how cooperative it is in correcting the wrong.

If Special Counsel Robert Mueller were, for the sake of example, to find that money laundering crimes were committed, it is not hard to imagine that he might identify some company within The Trump Organization umbrella as having facilitated it. But you can’t put a company in jail. Instead you do something like fine it, seize its assets, seek its dissolution (kill it), or some combination of those.

Just as Donald Trump legally could pardon Ivanka Trump, but might end up getting impeached for it, he could legally pardon The Trump Organization, though Congress might choose to impeach him for it. After all, impeachment ultimately is a political question, not one subject to the strict standards of a criminal prosecution.

Not the End

If Trump were to pardon The Trump Organization, it is not inevitable that this would end all related federal prosecutions. For as the earlier-mentioned DOJ guidelines make clear, a prosecutor must decide whether to go after a company, its officers, or both. The Trump Organization might get pardoned, but its owners and officers would need individual pardons.

Theoretically Trump could pull a Lincoln/Johnson and (instead of pardoning a class of confederate soldiers) pardon everyone in any way affiliated with The Trump Organization, from prosecution for any actions related to the company. He might end up accidentally pardoning a bookkeeper who was stealing money from the company if not careful. As well, you will recall the broad pardon thing did not work out so well for Lincoln and that Andrew Johnson came within one vote of being removed from office.

Conclusion

For such reasons, my answer to the Rev. Richard Hong is yes, Donald Trump may pardon The Trump Organization. But the individuals alleged to be pulling the levers, say Eric and Donald, Jr., likely would need pardons of their own.

Even if Trump were to pardon every owner and manager of The Trump Organization, along with the company and all of its affiliates, and were wiling to risk impeachment to do it, there still might be a hangover. Someone like the Attorney General of New York might come in and build on Mueller’s work to pursue a criminal prosecution under state law. It is no coincidence that rumors of Mueller working with that Attorney General are circulating soon after President Trump announced his first pardon. Pardons don’t prevent an attorney general or private citizen from pursuing a civil suit either.

While the President can’t pardon himself, and might end up impeached for a particularly controversial pardon, preventing The Trump Organization from being dissolved and having its assets seized could at least help ensure he has a job to return to once no longer president–whether that be one year away or over seven years from now. A pardon of the Trump Organization on his last day in office might be his best investment yet.

David Schleicher is an attorney who splits his time between offices in Waco, D.C., and Houston. About half of his practice involves representation of federal employees. See www.gov.law for more information. 

Leaked Trump Anonymous Transcript

By Schleicher & Gallagher
(Deep State Newswire) — Below is a transcript obtained by the National Security Agency and leaked to the totally fake media of a secret meeting held far, far away in New Jersey…

[Muffled noises; chairs scraping on concrete; coughing]

Unknown woman: Shall we get started?

Group: God, grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.

Anthony Scaramucci: What a load of horses–t.

Reince Priebus: Tony! We’ve discussed this. It’s important we turn over our recovery to a higher power. Now, please, let’s welcome our newest member, Steve.

Steve Bannon: Hi, I’m Steve. AND THERE IS NO HIGHER POWER THAN ME. I MADE THIS FREAKING PRESIDENCY POSSIBLE AND I CAN TAKE IT AWAY!

Group: Hello, Steve.

Woman: Um, yes. We’ll review the 12 steps later…OK, let’s get started. Jim, do you want to go first?

James Comey: My name is James Comey and I was fired by Donald Trump.

Group: Hello, James.

Michael Flynn: Hello, testing one, two, three. Testing. Can anyone hear me? Is it on?

Sally Yates: Point of order. I think we start with our name and then that we were fired by Trump.

[Sound of rustling shrubbery; man’s voice]: My name is Sean and I was fired by Donald Trump after his popular vote landslide and hugely attended inauguration, which photographs prove if you look at them with one eye closed.

Priebus: Sean, we’ve all been fired. We don’t have to lie anymore.

Scaramucci: My name is Anthony and I was fired by Donald Trump. It’s been three f—-ing days since I lied.

Group: (Applause) Hello, Anthony.

Yates: Guys, we’re here to move past our problems, not rehash them. And that was a lie, too, Tony.

Comey: According to my contemporaneous notes, there was no agreement not to rehash problems.

Bannon: To betray me after all I did to get him elected! Probably did it for 30 pieces of silver from Jared.

Priebus: Steve! That kind of anti-Semitic talk is wrong. Independents hate it and we have a mid-term in just over a year.

Chris Christie: Hey guys! I was just wandering around because some idiot closed the beach! And the traffic on the bridge is a killer. What’s going on here?

Yates: Point of order. Governor, this is for people who have been sacked for insufficient loyalty, thrown under the bus or otherwise scapegoated by the president.

Christie: How about being deep-fried and kicked to the curb by him? Does that qualify?

Group: Hello, Chris.

Scaramucci: But it wasn’t him! I still support the president 110 percent. It was the g-dd–n lame-stream media that got me fired.

Comey: Can you all promise me no one will get their book out before mine hits the stands?

Yates: Can you all promise me that none of the rest of you will run for Senate before I do?

Priebus: Books? I signed a non-disclosure agreement. [muffled sobbing sound]

Bannon: And if you read it, you’ll remember it authorizes me to garrote you for even disclosing it exists.

Priebus: Ummm…but now that you’re out, Mr. Bannon, you’re no longer bound by that? Right?

Christie: Bring it, Dimbart Man. You’ll have to get through me to beat up this poor little Priebus kid.

Comey: So many threats. You’d think this was the Gambino crime family.

Scaramucci: They were the best 10 days of my life [sobbing].

Flynn: Is it hot in here? My shirt is itchy.

[Door knocking; unidentified woman speaking]: May we help you?

[Multiple voices]: We’re the president’s manufacturing council. There’s another limousine behind us — I think it’s the council on culture and arts. And a few more behind that one, too. We’ve all quit.

Yates: Technically, this group is for those he sacked, not those who quit. We’re going to need a lot more chairs if we invite everyone who now feels disappointed, let down or appalled by him since the election.

Priebus: Yeah, several million more chairs, based on the latest polls.

Bannon: Why the hell are we all here? We have nothing in common.

Comey: Well, we all got fired by you-know-who. Sally and I were not loyal enough and threatened to do our jobs.

Sean Spicer: And me, Tony and Reince — am I saying your name right? — we got the axe because we couldn’t control the fake news. Or the leaks. Or the things tweeted at 3 a.m. from the White House men’s room.

Christie: I wonder if he always planned on tossing me overboard, or Jared just pulled him aside and—

Priebus: I went from leader of the Republicans to presidential floor mat and flyswatter. So don’t feel special.

Scaramucci: Wait! I think I hear another f—ing limousine parking outside this f—ing place.

Comey: I wonder who his next victim could be — seems like nobody is safe from his sociopathy.

Yates: Is that who I think it is?

Priebus: I think it might be — I would recognize that profile anywhere.

Bannon: I guess there really is no hiding from the past.

[Sound of door opening]

Group: Good evening, Mr. President!

Flynn: Come in base camp. Come in base camp. The package has arrived. Repeat, the package has arrived. Video drop was successful.

[End of transmission]

P.S. — A thank you to Greg Dauphin for suggesting we assemble this crew.

This originally appeared in the August 26, 2017 Waco Tribune-Herald. David Gallagher is a transplanted Texan, living and working in London, tweeting @TBoneGallagher. David Schleicher is an attorney who splits his time between Waco, D.C. and Houston, tweeting @TheContranym.

Trump Pardons Press Conference


By Gallagher & Schleicher

Ladies and gentlemen, the President of the United States…

Great to be back in New York with all of our friends and some great friends outside the building, I must tell you. We’re here today to talk about infrastructure. The kind of infrastructure that will make Heaven embarrassed that its streets of gold are not classy enough. No distractions today from infrastructure. You’re going to beg me not to make bridges so nice. Really.

Have you met Hope Hicks, my new press girl? Easy on the eyes, or what? You never saw a press girl like that with Obama, I can tell you that for sure. I was looking. Wasn’t there.

REPORTER: What makes you think you can get an infrastructure bill? You didn’t get health care, you didn’t get tax reform…

The people deserve it; frankly our country deserves it. We can’t just pave over the past. Like the way they treated General Robert E. Lee in Charlottesville. One of our great generals, the greatest really.

REPORTER: Pardon me, but how do you plan to bring the country together.

I’m going to reveal a great plan to do that, to the media, both real and fake media, by the way. You guys keep asking me about pardons. Nobody cares about pardons. It’s to distract from the Democrats losing bigley, the worst defeat in world history. Really. It was beautiful.

REPORTER: Mr. President—

Now I’m going to announce some pardons today. Look at General Kelly over there, head down, crossing his arms. What a great reputation he had. All gone. All gone.

If you didn’t see what I just tweeted on the bathroom break, it’s all there. Effective immediately. Officially, by me the president, who has the power to pardon. Pardoned for any so-called crimes they committed before I was elected, last night in New Jersey for example. Also for any crimes they may commit in the future, in Maryland, for example.

Next, all the confederate generals. They fought bravely for us. Trying to help American workers by not letting everyone in the wage pool. It’s a deep pool. It really is. All the statutes, or statues, or whatever, they’re all pardoned. Taking down our great metal idols, many of them put up by Senator Jim Crow or whoever. You saw it on the videos, confederate generals being decapitated in an egregious display of hatred, bigotry and violence. It has no place in America.

REPORTER: Mr. President, are you supporting the white nationalists?

Excuse me. Take it nice and easy. A Nazi salute here and there and you all freak out. Welcome to America. We let everyone speak their mind here. It’s a great country.

REPORTER: What about the protestor who told the reporter “This city is run by Jewish communists and criminal nig—-s”?

Everybody kids around. I like to give Jared a hard time. He’s Jewish. Made my daughter one too. They don’t take it personally. Lighten up. Ben Carson. He’s the black in my cabinet. He’s okay with it. Really. But let’s focus. I came here to talk about pardons and I’m going to do it.

Don Junior. He’s a good kid. Dumber than a box of rocks. Pardoned for setting up meetings with Russian spies. Not his fault. Thought they were Russian mobsters. Nobody knew Russians could be so complicated. And pardoned for the perjury he’ll commit before the grand jury.

Back to Jared. Really a good kid. Smart. Handles money really well. He’s pardoned for trying to set up a secret channel to the Russians that couldn’t be detected by the American intelligence community. So he could launder money. Do you wonder why they call themselves the “intelligence community”? Dumbest people I’ve ever met. I’m bringing a lot of cleaning jobs back to America. I’ll leak the details about Jared’s so-called crimes to the failing New York Times, if Bannon doesn’t do it first.

Jeff Sessions and Ivanka. One of them is pardoned. I won’t say which due to nepotism rules, but it’s the really hot one. Pardoned for stealing emoluments and anything else the fake media accuses her of. Trump International Escorts, which by the way I have no hand in, no part of at all, charges extra for emoluments, so I don’t see why it’s a big deal. Sad. Really sad.

REPORTER: How much do you expect the infrastructure improvements to cost? $100 billion?

The pardons are given out freely. Sheriff Joe Arpaio isn’t paying me anything for his. All he had to do was disobey a judge and round up some people who looked like rapists from Mexico. The constitution calls it the balance of power. Judges interpret the law and I cut them out of it.

In cases where there are many sides, I will pardon those on the right side. The right has fine people, and I see them because I watch the videos, too. I will not pardon the wrong side. You can count on that. I can’t pay for the legal defense of everyone who marches with their arm in the air and a tiki torch, but I can pardon them. If you don’t want to march and instead make a little side money from infrastructure projects, there’s a pardon for that too. Call my foundation for details.

My final pardon is for Mike Pence. He survived that perversion therapy and is a great American now. Someday he’ll get the chance to pardon me too. Do unto others, like it says in two Corinthians.

—–

David Gallagher is a transplanted Texan, living and working in London, England, tweeting @TBoneGallagher. David Schleicher is an attorney who splits his time between Waco, DC, and Houston, tweeting @TheContranym.

In response to being called a “dumb butt…” (advice on eliminating elitists)

elite

By Schleicher & Gallagher

As two recovered cosmopolitans, we were relieved and flattered by the praise heaped on our latest column in a letter to the editor by our friend Jim Johnson. Our transition from “smart aleck to a dumb butt” and what he labels “perpetual SOS drivel” came only with effort and meditation and the support of friends, family and the wider community. Thank you.

Johnson’s eloquence tied in nicely with a more recent article that warned Waco downtown development could bring in “a population of very intelligent and culturally aware people.”

We are all too aware of the dangers such hubristic interlopers pose. For years we were beguiled by the cosmopolitan agenda, visiting, working and living in a collection of elitist-infested swamps: Washington, D.C., London and, in our formative years, Austin. The risks, we know all too well, are not imaginary. Photography exhibitions. Lectures on astrophysics. Dim sum.

Take it from us: The steep slide to iniquity starts innocently with a poet or two, or a freelance graphic designer, before descending into chaos: open-air opera, pop-up art shows and literary festivals.

Check the cosmopolitans at the gate with a few simple policies:

  • Shun the newcomer: Think not of a new neighbor as someone who may add spice to the melting pot but as an existential threat. Promptly confront new ideas. Phrases like, “Well…as someone who was born here, I…” or “You’re not from here, are you?” can quickly bring them to heel.
  • Pigeonhole the stranger: When you meet a visitor, don’t ask something that would be routine in larger cities around the world like, “Where do you work?” or “What do you do?” Instead ask, “And where is your church home?” (Don’t let the fact you’ve only been twice in the last year stop you.) This has the benefit of allowing you to label people at the same time as making them feel unwelcome if their “church” is a synagogue, mosque or backyard hammock.
  • Assail the arts: Whether complaining of high ticket prices (i.e., over $10), having street musicians arrested or defacing public murals, it’s imperative to abjure the arts. They draw the crème de la crème like flies to… well, you know.
  • Cancel your subscription: Your local newspaper tends to ask hard questions, promote phonological promiscuity (AKA “excessive reading”) and some days even runs editorials on the opinion page that you may not agree with 100 percent. Remember, if you don’t know about the serious crimes your neighbor or council member was arrested for, it can’t keep you awake at night.
  • Question ethnicity and accents: When encountering someone who looks or talks differently than you, press them on it. For example, a newcomer might tell you she moved to Waco from Los Angeles because of watching “Fixer Upper.” Respond with, “But where are you really from?” as if you will only believe her once she mentions another country, like Mexico. (PS, assume you have no accent.)
  • Presuppose everything you do is typical: Look dubious and disgusted when someone new to town finds your traditions curious. For example, someone may ask you to explain what the “Waco Cotton Palace Pageant” is. Treat them as peculiar and perhaps a little dangerous for inquiring why people still dress up once a year in Civil War-era outfits, dance around and crown a king and queen for which the king is generally twice or more the queen’s age.
  • Begrudge the tourist: Every tourist is a potential future resident. To play it safe, never offer them directions or water, treat their every error as intentional and don’t miss a chance to honk the horn when they cross in front of you.

Wherever you live, simple acts like these can play an important part in seeing to it that your property value does not rise, your horizons are unexpanded and the local unemployment rate maximized. Change may be inevitable, but only in the conurbations. There’s no drivel so sweet as parochial poppycock. Trust the word of a “dumb butt” on that.

 

Of eight cities, David Schleicher has lived the longest in Waco. David Gallagher is a transplanted Texan, living and working in London, England.

[This column originally was posted online by the Waco Tribune-Herald on August 11, 2017 and appeared in its print edition on August 12, 2017]