Who will Donald Trump pardon next? It’s not that simple.

| 7:00 pm EST November 25, 2020
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Now that Donald Trump has pardoned Michael Flynn, it’s set off all kinds of narratives about whom he might pardon next, whether he’s planning to simply pardon everyone around him, and what his overall master plan is. I can give you at least some insight into the answers.

First, as I’ve explained at length, pardons aren’t magic wands. There are several reasons why each person receiving a Trump pardon may not actually be off the legal hook. More importantly to Trump, each of these pardons is a calculated risk on his part.

If Trump doesn’t pardon a co-conspirator, he risks that person cutting a plea deal against him. But if Trump pardons someone and it results in that person no longer facing any criminal jeopardy, then the Fifth Amendment is no longer in play, and federal and state prosecutors can require that person to testify against Trump. Trump would then be at the mercy of that person’s willingness and/or ability to pull off lying to investigators in the name of not giving Trump up.

So with Flynn for instance, Trump has concluded that Flynn would have been more of a threat to him without a pardon than with a pardon, so he pardoned him. But what happens when Trump applies that same criteria to Bill Barr, who’s on the hook for felony obstruction of justice, or Mike Pompeo, who’s on the hook for Ukraine crimes, or Rudy Giuliani, who’s on the hook for everything under the sun?

We’d guess Trump will pardon Giuliani, simply because Giuliani appears to have all kinds of criminal dirt on Trump, and Giuliani seems like the kind of person who would cut a plea deal against Trump in retaliation for not getting a pardon. But does Barr fit this description? Does Pompeo? Some in Trump’s orbit may not want a pardon, because they mistakenly expect not to be criminally charged, or because they arrogantly expect to be able to beat the charges, and accepting a pardon is something of a career killer in the meantime. Accepting a pardon is also by law an admission of guilt, which could open up some of Trump’s people to civil action, so they may not want a pardon for that reason. It’s all rather complicated, on a case by case basis.

In the end, Trump will surely try to pardon himself and his family, even though New York State can easily do to them whatever the DOJ can’t. And the Flynn pardon suggests that Trump will pardon anyone with sufficient Kremlin connections, under the presumption that Putin wants it to happen.

But beyond that, we really only expect Trump to issue the specific pardons that he thinks are in his own best interest. How many such pardon scenarios exist? You’d have to ask him. We wouldn’t dare try to predict a specific number. Just don’t expect it to be everyone under the sun, because a number of co-conspirator pardon scenarios would merely end up working against him. And again, pardons are not magic wands. They’re just the only hope Trump has left of slightly reducing his own criminal exposure on his way out the door. Some of these pardons will be thrown out in court. Many of these people are going down on state charges anyway. Trump himself is certainly going to state prison in New York.