Usually Jonathan Turley waits a couple decades before openly contradicting himself for political expediency. But now he can’t make it two whole paragraphs. Of course, since it’s Turley there’s some pseudo-legalistic gibberish thrown in to justify his 180 as if it’s nuanced galaxy brain analysis.
In an article for The Messenger, Turley opens by chastising an anonymous reporter for “Can you give me the odds?” — a question that Turley interpreted as looking for the odds on Trump’s conviction.
For most of us, convictions are what gamblers call “off the board” bets; handicapping criminal cases can be not just untoward but unwise.
In truth, the reporter asked the wrong question if he was trying to get the spread on Trump’s future. The better question would have been the odds on Trump going to prison, not his odds of conviction. They are distinctly different propositions, and there is a reliable spread on that possibility.
But the reporter didn’t ask “his odds of conviction.” Non-lawyers — and Turley notes that this was a foreign correspondent — don’t draw distinctions between convictions and sentences like they’re approaching a 1L crim law exam. Normal people assume getting convicted of ESPIONAGE results in a prison sentence.
Also, if the odds of prison are 50-50 then that’s implicitly setting the odds of conviction higher than 50-50. Because a convict may or may not go to prison, but an acquitted defendant most assuredly will not. See how this whole “asked the wrong question” thing sounds superficially insightful but just boils down to a distinction without real difference?
Thus, the odds of Trump going to prison could well be the same as the odds of him or another Republican winning the 2024 presidential election.
Currently, those odds are roughly even.
He just said Trump’s odds of conviction are somewhere north of 50-50. Thank you. That’s all anyone wanted to know.
But with the inevitability of f**king Thanos, the Turls subjects us to his unwarranted musings on the viability of a self-pardon. Most legal scholars don’t think it makes any sense since it would functionally immunize a president to commit federal crimes. This actually came up during the Nixon administration and even that crook wouldn’t pull this thread. Turley argues that the Framers didn’t explicitly ban a self-pardon… but it’s lunacy to think the Roman Republic fanboys behind the Constitution intended to enshrine the Julius Caesar loophole.
As an aside, Turley doesn’t do this, but other incredibly dumb people do so we should address it: “crossing the Rubicon” is an unintentionally hilarious historical reference to invoke against charging a former president with a crime. Julius Caesar crossed the Rubicon to illegally squash a prosecution against him. The DOJ isn’t “crossing the Rubicon” by charging Trump, Trump would be “crossing the Rubicon” if he pardoned himself.
Anyway, Turley thinks the Framers should be held to not contemplating a future executive being a criminal because, when you think about it, JFK appointed his brother as Attorney General. Wait, what?
Indeed, presidents have long used presidential powers to benefit themselves and their families in various ways. John F. Kennedy appointed his brother, Robert, as attorney general; Trump put his children on the White House staff. Pardons are no different. The Constitution does not bar such self-dealing any more than it bars self-pardons.
For those keeping score, it’s silly to colloquially conflate being convicted with being sentenced, but it’s completely right and proper to conflate giving your brother a job with inoculating yourself from committing murder on federal property. Not that Trump is accused of committing murder — yet — but Turley’s interpretation justifies this outcome. It’s a reading that — to borrow from Dickens — would make the Constitution a ass — an idiot (yeah, Dickens didn’t understand the article “an” I suppose).
So Trump can pardon himself, Turley asserts, but that’s not his only get out of jail free card.
Turley concludes with his scalding hot take for the networks — Joe Biden should pledge to keep Trump out of prison!
President Joe Biden could make an unexpected legal move, too, however. He could pledge not to pardon Trump but to commute any sentence handed down if Trump is convicted, declaring that — in the best interests of the country — he would spare his rival and a former president from being sent to prison. It would blunt any criticism of a more lenient outcome in Biden’s own classified-documents scandal.
Frankly, it’s impressive that Turley doesn’t call on Biden to issue a full pardon. But I guess there are too many people out there pitching that half-baked idea. The secret in the hot take economy is distinguishing yourself.
And no one owns the distinction without difference like Jonathan Turley.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.