It’s established fact that Donald Trump is deep in the legal soup. The
Trump Organization was found guilty of criminal tax fraud. Trump was indicted by Manhattan District Attorney Alvin
Bragg over the payment to Stormy Daniels and those “catch and kill” payments
that buried negative stories about him. A separate New York jury found that he sexually abused E. Jean
That would be reasonably “impressive” for any gangster, but for Trump, it’s just the appetizer. Fani Willis, district attorney of Fulton County, Georgia, is expected to drop the hammer by August. And special prosecutor Jack Smith continues to look like he’s loading the cannon with grapeshot, getting ready to indict Trump on both January 6–related charges and his … expropriation of classified documents.
But this week, we learned that it’s quite possible that none of that is the worst thing he may have done. Noelle Dunphy, who worked for Rudy Giuliani back in 2019, filed a complaint this week alleging all manner of grotesque behavior by her old boss. But even as I waded through that sordid muck, I gasped when I got to paragraph 132:
[Giuliani] also asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split. He told Ms. Dunphy that she could refer individuals seeking pardons to him, so long as they did not go through “the normal channels” of the Office of the Pardon Attorney, because correspondence going to that office would be subject to disclosure under the Freedom of Information Act.
This hasn’t gotten nearly the attention it deserves, partly because the bulk of her complaint is far more sensational and gross, as it has to do with allegations of forced sexual service and morning boozing, and partly because the news cycle has been pretty crowded this week.
But think about it. A president selling pardons is morally and ethically right up there with the Catholic Church selling indulgences, a practice that has gone down rather poorly in history—and that led, more or less, to the rebellion against the Church that became the Protestant Reformation. As Trump’s possible crimes go, it may not be quite the equal of trying to orchestrate the overthrow of the U.S. government. But it’s bad. It’s impossible to imagine any other recent American president having contemplated such a thing (Nixon? No, not even Nixon, I don’t think). But with Trump … well, of course this is just an allegation, but who on this earth—this earth, not Jim Jordan earth—thinks he’s above such a thing? And Giuliani? The Giuliani I knew 30 years ago would not have done such a thing. But this Giuliani?
Let me put it to you this way. Bill Barr was on Fox this week. Bret Baier asked Barr if he thought such an allegation could be true. Barr sighed: “Uh, I’m skeptical about that. I don’t think Rudy Giuliani would do that. I hope he wouldn’t, but I don’t know.”
Note that Barr expressed the hope that Giuliani wouldn’t do such a thing. But with respect to Trump, he expressed no such hope. Left unsaid but clearly implied: Of course Trump would do such a thing! And this is the guy who shilled for Trump on several occasions.
There’s reason to suspect there may be some fire behind this smoke because this has come up before. In January 2021, when everybody was obsessing over the insurrection, The New York Times reported on the “brisk market” in fees for Trump allies helping to arrange last-minute pardons for various people. There was the case of a onetime Trump adviser who was paid $50,000 to try to get a pardon for John Kiriakou, a former CIA officer convicted of selling classified information. The Times reported that Kiriakou was “separately told” (by whom, it didn’t say) that Giuliani could help him secure a pardon for … $2 million. Kiriakou rejected the offer. Someone told the FBI about it. Giuliani denied it.
Kiriakou appeared on Democracy Now! this week and told Amy Goodman of a meeting he had with Giuliani and others at Trump’s Washington hotel. Kiriakou said he asked Giuliani about a pardon. Giuliani got up and went to the rest room. Kiriakou asked the aide what just happened. The aide said, “You never talk to Rudy about a pardon. You talk to me about a pardon, and I’ll talk to Rudy.” Kiriakou said OK. The aide said: “Rudy’s gonna want $2 million.”
There it is. So paragraph 132 of Dunphy’s complaint didn’t materialize out of thin air (although the fact that it was public previously could conceivably mean Dunphy’s lawyers included it based on those news accounts).
Now let’s look at some of the folks Trump pardoned, or whose sentences he commuted, just before he left office. It was a long, long list. There were a lot of narcotics traffickers, and while this doesn’t exactly mesh with the Republican Party’s hard-line stance on the matter, let’s be kind and assume that some of those were actually sort of humane.
But there were at least seven or eight people who were involved in Ponzi schemes or other forms of fraud. I’m not accusing these people of anything. I’m just pointing out that Trump pardoned (or commuted the sentences of) people who probably had access to or could rustle up a significant amount of cash.
Trump’s already-known abuse of the pardon system is that he pardoned or gave commutations to so many people who were involved with him—Michael Flynn, Roger Stone, and so on. This constituted a flagrant abuse of power. At the Constitutional Convention, when they were debating the pardon power, George Mason said the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic” (big points for prescience there, eh?). James Madison rejoined that, well, Congress could always impeach such a president. Right.
So Trump has already violated the spirit of the pardon language. Now we learn he might have violated laws too (specifically, these laws). Again, we don’t know it to be true. But surely there’s good reason for the Justice Department to look. And it’s safe to say that this is unlikely to be the last shocking allegation we’ll hear about the man who remains the GOP front-runner for 2024.
This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.