So I had thought a bit about self-pardons and Trump, as you might have read. I had also thought of civil cases being brought against Trump. But the last week has been so hectic I didn’t even stop to think about the tradeoffs between self-pardons and civil cases. (To be fair, the consequences for the country are more important to me than the consequences for Trump.)
But ABCNews has a piece up that directly addresses civil liability and briefly raises the fact that a pardon of any kind (issued by Trump to himself or issued by any subsequent president to Trump) is terrible for Trump’s ability to defend against a civil suit.
Why is that? Accepting a pardon is taken by a court to be an admission to the underlying conduct. If the underlying conduct also constitutes a tort, then the person receiving the pardon who is sued by a victim begins the case with an admission of guilt to the conduct on record. Remaining issues (like quantity of damages) will not be nearly so hard to prove for a plaintiff, so when someone files a suit against a defendant who has accepted a pardon for the same underlying conduct gets a plaintiff far more than halfway home.
I do know there are ways to overcome the admission, though I’m not entirely sure how the USA handles an effort to do so. For instance, if someone was pardoned after making a false confession under torture and later a combination of forensic evidence and proof of the torture come to light, a pardon might be issued and yet a court might still find a person not responsible for a tort. It’s unclear to me precisely how that unfolds, but it is possible.
Still, in situations like Trump’s, there is no denying that he engaged in certain conduct. The question is simply whether or not it rises to the level of a crime. In this case, it would be very, very difficult, it seems to me, to successfully argue that Trump isn’t responsible for his conduct given that the pardon creates an admission that the behavior was, in fact, criminal.
So what does that mean? Well, a police officer was killed in the line of duty. There’s an easy tort right there. One woman who was a willing participant in storming the Capitol was trampled. There’s a good argument that she was partially responsible for her own trampling, but that would likely only reduce damages. This is already a good amount of liability.
Now, some might think that cases like these don’t generally touch $10m in damages & Trump has hundreds of millions to his name. Probably true, but his wealth is tied up in his real estate company. Given that the company is in serious debt, and given that he has made his own brand toxic, and finally given that it is going to be difficult if not impossible to get financing for his properties going forward (for several reasons), he may have to sell his assets to pay his loans rather than simply refinancing them. Since the assets are generally worth less than he told the banks, he has probably borrowed most of the property’s value, and possibly more since his own behavior damaging the brand reduces the business those properties are able to perform and thus reduces their profitability, which, finally, reduces their resale value.
If he has borrowed 90% or more of the value of these buildings the costs associated with a forced sale combined with an inability to wait indefinitely for the right buyer means that he might come out of the sale with nothing (or even still owing money to the bank). These dynamics could easily put his company into bankruptcy, leaving Trump with little to no value.
He still has personal wealth, of course, but most of his wealth is in the Trump holding company. So if that goes down, then even a $5m judgement woud seriously impede his lifestyle. And if he has already effectively admitted guilt, that $5m judgement might be easy for a plaintiff to get.
Worse still? Apparently quite a few people refused to wear masks during lockdown. Two democrats have now tested positive for the novel coronavirus which causes COVID-19 as a result. With enough people in congress getting sick, because of the average age, there’s a real chance that a senator or house member will die. The total judgements would increase, possibly multiple times with multiple deaths. Then there’s the fact that his behavior is of a particularly despicable nature, at least as viewed by the law. That opens up the possibility of punitive damages (not so much in the case of the person trampled, but certainly for the cop who was killed and for any democrats in congress who might pass away from COVID-19 as a result of the attack.
The upshot is that $20m isn’t an unreasonable guess at his ultimate liability, and $50m isn’t insane (it just would require the unfortunate further deaths of people exposed to the coronavirus that have not died yet – so this is definitely not something to wish for, but it’s also something that might still happen). For a man with only a couple hundred to five hundred million in total assets, most of that in his firm, a loss of his firm + $50m in judgements could easily wipe him out completely, with no way to rebuild his empire since it looks like he wouldn’t be able to get business loans.
So what does all this mean for a self-pardon? It means that Trump will have to consider very carefully which fate he considers worse: ending up in poverty or ending up incarcerated since the cure for the latter will only make the former more likely.