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A Washington Post article that describes President Trump's pardons over the last few days says the following:

The move sparked blowback, mostly from Democrats, who accused him of wielding his executive authority to shield himself from possible criminal investigation.

How would Trump's pardoning of other people protect himself from any potential criminal investigation in the future? People who have been pardoned could still be subpoenaed in a future investigation. Wouldn't the only way for Trump to protect himself be to pardon himself, which he has not done yet?

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As best I can tell, these pardons are meant as rewards for being loyal to Trump, not as protections. They don't actually protect Trump in any way: the contrary, in fact, since pardoning someone implies they can no longer invoke fifth amendment rights, meaning they can be compelled to testify against Trump in the future. But Trump has — as others have pointed out — a mob-boss attitude in which demonstrations of personal loyalty to himself personally must be rewarded and demonstrations of disloyalty punished. This is amplified by the fact that Trump has been trying to overturn the US election almost entirely as a loyalty test: trying to get judges he appointed, GOP governors and state legislators he supported, GOP congresspeople he campaigned for, and his own base to somehow push him into a second term merely because he asks it. These pardons are a signal to everyone that this is what they can expect if they do the loyal thing and install him as president; those who stand by him will be protected.

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    I'm curious, do you have concrete examples in which people pardoned have been thus compelled to testify (because they could not claim the 5th)? – Fizz Dec 25 '20 at 16:06
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    @Fizz: Not off hand, though I don't suppose it would be difficult to find. The Fifth Amendment protects one against self-incrimination. Once pardoned, one cannot self-incriminate, and so the fifth amendment cannot apply. Subpoena such a person and put them on the stand under oath, and they can be compelled to testify like any other hostile witness, subject to perjury charges. If the choice is between telling the truth or facing five years in prison for lying, well... how far does loyalty go? – Ted Wrigley Dec 25 '20 at 16:23
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    @Fizz - A slightly different version of that question went to the SCOTUS: Burdick v. United States. The question they actually addressed was whether someone could reject a pardon so as to be able to continue pleading the 5th, but I suspect that that would be a strong basis for arguing that the reverse is true as well (if you've accepted it, you can be compelled). For actual case law related to it, you'll probably have to ask on Law – Bobson Dec 25 '20 at 17:54
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    Seems suspect - a president could pardon everyone and then no one could plead the 5th – Justas Dec 25 '20 at 19:51
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    @Justas: In that case, no one could be prosecuted, either, since they've all been pardoned. So the harm which the 5th is designed to prevent would not come to pass. – Kevin Dec 27 '20 at 1:21
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I haven't read the article, but I'm guessing people in prison are more likely to strike a deal and help with an investigation, in return for some favors like early release etc. I don't recall the exact context in which this was said (I think it had something to do with spies cooperating) but it went along the lines of "you'd be surprised what people would trade for a blanket in prison."

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  • Are you saying they struck a deal with Trump to not help in any future investigations in return for the pardons? – pacoverflow Dec 25 '20 at 9:25
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    @pacoverflow: no, I'm just saying that they might have less reason to help a future investigation if they're not in prison. – Fizz Dec 25 '20 at 9:34
  • Good answer. I think you could be a little more specific: pardoning accomplices hamstrings any future prosecutor's ability to get that person to cooperate with an investigation. – adam.baker Dec 27 '20 at 5:20
  • But then if they're subpoenaed, they might go back to prison if they refuse to cooperate or lie under oath. – pacoverflow Dec 27 '20 at 18:19

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