This weekend my column on the Trump pardon controversy ran in the Washington Post. (Notably, while the first title referenced a President pardoning himself, the later title referenced pardoning aides which was the thrust of the column). As I have stated in the press, I consider this one of the most difficult questions in the Constitution. I wrote that there is nothing in the Constitution that says that a president cannot self-pardon and that this was a very close and unresolved question. The same day, a column ran that said conclusively that the self-pardon are clearly and textually barred by the Constitution. That column was written by Harvard Professor Laurence Tribe, Minnesota Professor Richard Painter, and Brookings Institution fellow Norman Eisen. I must respectfully disagree despite my respect for the prior work of all three of these men. While I believe that it would have been better for the Framers to expressly bar self-pardons, they did not do so. What is left is a difficult interpretive question that is not answered by the arguments made in the column. Indeed, some of the arguments are challengeable on either a historical or legal basis. This is an issue that could easily go either way in the courts. In the meantime, President Trump this morning fueled greater speculation with a tweet referring to his “complete power to pardon.”
First, it is important to start with what virtually all constitutional scholars agree upon: a presidential self-pardon would be an ignoble act even if it is deemed constitutional. Moreover, it is also clear that courts would be reluctant to review such a decision since the Supreme Court has long viewed pardons are an unfettered and political question. However, it is possible that a federal prosecutor could seek to bring a charge and force a court to rule on a motion to quash an indictment based on a prior self-pardon. Absent such a criminal charge, a judicial review of the decision might be difficult. If so, Trump could pardon himself and others with a fair certainty that the issue would not be raised — or at least resolved — during his term.
My view is that the Constitution does not clearly limit the power of pardons beyond its use with regard to impeachment. That does not mean that there is not a good-faith interpretation of the text that would bar self-dealing. However, the text of the Constitution remains the most important determinant in such interpretations and we should not lightly read in exceptions from constitutional protections or powers.
Article II, Section 2, of the Constitution, states the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There is no language specifying who may or may not be the subject of a pardon. The President is simply given the power to pardon any federal crime.
The authors however insist that
“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.”
The second point is equally dubious as support for a bar on self-pardons. The authors are referring to Article I, Section 3:
Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
This provision refers to anyone who is impeached and says that the impeachment does not alter their status with regard to any possible prosecution. Thus, presumably under this same argument, a president’s pardoning of any federal official or judge would “make no sense” since they are all supposed to be able to be eligible for prosecution. The interpretation would not only insert a limitation on self-pardons but any pardons of government officials.
The fact is that the Constitution is silent on the issue — raising the propriety of reading into the language a limitation not in the text and not clearly mandated by the legislative history.
The records of the Constitutional Convention are relatively bare of discussion of the pardon authority, though some discussion did occur. One of the most intriguing was James Wilson’s respond to Edmund Randolph’s suggestion to bar presidential pardons in treason cases. Wilson opposed the proposal and noted that if the President “himself be a party to the guilt he can be impeached and prosecuted.” 2 Records of the Federal Convention of 1787, at 626 (Max Farrand ed., 1937). That would obviously assume that either a president did not have the power to self-pardon or did not do so.
The authors then assert a couple of historical and policy arguments. They state, for example, that “[f]our days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” However, there was actually a division of opinion among lawyers with some advising Nixon that he had such authority. Mary Lawton’s opinion is a brief and largely conclusory opinion on the issue. Nixon was given various options, including a self-pardon, covered in a memorandum by Nixon’s lawyer, J. Fred Buzhardt. Neither side could claim a dispositive source for their conclusions.
They also claim
“The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.”
Again, this argument is rather underwhelming. The King of England was protected by an absolute rule of immunity: “the King can do no wrong.” There would be no need for a pardon of the King in a system where the King could not be charged for much of this history. Moreover, when Kings were deposed, it was not a matter of litigation but revolution. It would be rather precious for a deposed James I to claim that he could remain by pardoning himself after his overthrow. When a sovereign is facing the “chopping block” it is not over some element of the criminal code but claims of illegitimacy. Even Charles I executed for treason would not have been able to pardon his way out of his beheading by his irate protestant subjects.
Things get even more extenuated by the next example of historical subject for a ban on self-pardons:
“We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.”
The comparison of a pardon with religious atonement is a bit too clever by half. The Pope was carrying out a sacrament that requires a priest.
Leviticus 19: 20-22: A man who committed adultery had to bring a guilt offering for himself to the door of the tent of meeting (holy place where the ark of the covenant, which contained God’s true presence was kept). But then it adds “And the priest shall make atonement for him …before the Lord for his sin…and the sin which he has committed shall be forgiven.”
Yes, it is true that atonement involves a second person but that is where the analogy ends. A pardon is actually not an atonement or even forgiveness. It is an act that bars punishment. It does not excuse the underlying crime.
The primary rationale for barring self-pardons is the problem of “self-dealing” and the long-standing rule that no one should be the judge of their own case. Once the earlier arguments are stripped away, that is the heart of the author’s claims to have a dispositive answer to the question. It is not a frivolous argument and one worth serious consideration.
“Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”
Of course a number of distinctions could be drawn. First, a president is not acting in a true judicial but rather a political capacity. His actions are extrajudicial. Second, there are a host of ways that presidents engage in self-dealing. Presidents have long engaged in nepotism, including both Presidents Trump and Clinton.
Third, the denial of the right of pardon to the president means that he is the only person who is not entitled to this protection since no one else is qualified to exercise the power. This raises, at least tangentially, the necessity doctrine where all of the judges who have jurisdiction are somehow disqualified from the case because they have an interest in the outcome. In such cases, the disqualification rule is set aside to avoid a denial of justice. Evans v. Gore, 253 U.S. 245, 247– 48 (1920). A president could find himself the subject of an abusive investigation by opponents and consider a self-pardon just. Yet, he may not want to be forced to resign to benefit from this protection. A president could also find himself the subject of a campaign by a successor that pledges to charge him and others in his Administration. We have had such periods like the lethal fight between Federalists and Jeffersonians. I still believe that a self-pardon would be ignoble and wrong, but the law recognizes that disqualification rules are sometimes relaxed when the rule would exempt someone from a protection under the law.
Finally, and most importantly, the overwhelming opposition for self-dealing does not mean that we can simply graft it on to the language of the Constitution without an amendment. The Framers could have easily excluded presidents and did not. There are arguments in favor of extending the power to all citizens without exception. I would prefer a ban on self-pardons but I am skeptical of arguments that “principles of natural law” can be read into clear textual language to exclude individuals or classes of people from constitutional protections.
The clarity that the authors find Constitution is equaled by their clear feelings about this President.
“President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.
But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.”
I certainly would not fault the authors for their feelings of clarity with regard to Trump but the suggestion of a clear exclusion of presidents from the benefits of the pardon clause is difficult to discern in its language or history.
I think the framers of the Constitution would resolve the issue thusly: a president who commits a criminal act is impeached; he is removed from office, hence, he cannot issue pardons; he is then prosecuted; in the event of conviction, he is unable to pardon himself.
I believe the conflict arises because there is confusion between a pardon and amnesty, a confusion generated in large part by Gerald Ford’s pre-conviction pardon of Richard Nixon. A pardon wipes out a criminal conviction obtained after prosecution. Amnesty precludes prosecution in the first place. Semantics aside, Ford granted Nixon amnesty; he did not a pardon him. No one raised serious objections, although there were objections to be raised.
The quoted sections of the Constitution do not grant the president the power to grant amnesty. Consequently, Trump cannot grant himself amnesty. Correctly understood, he will be unable to protect himself from criminal prosecution either through pardon or amnesty.
Vince Jankoski – although I agree with you thinking, I think there is a way for Trump to give himself amnesty. President Carter gave amnesty to all draft evaders, so Trump could cloud himself within a group of others and then give amnesty to the bunch.
That would be a clever way to approach the problem. Of course, the issue would then be: can a successor president revoke the amnesty given that the person receiving the amnesty gave no consideration in return? With Carter and the draft evaders as with Ford and Nixon, the politicians and lawyers were just happy to put the ordeal behind them and not worry about the niceties of the situation. Let Ford and Carter take the heat for what they did, be glad that they did what they did, be glad that someone else had the guts to make the call, squawk about it for a while, bring it up during the next election cycle, then FORGET ABOUT IT.
The Trump administration is trying to cover up 9/11 LIES by the National Institute of Standards and Technology (NIST).
Fires have never brought down a steel framed structure.
“9/11 WAS AN INSIDE JOB”
The official U.S. Government & Media 9/11 story is that 2 NYC towers were brought down by 2 airplanes
This is a total LIE !
The Truth is that 3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11.
Christopher Bollyn: If the government and media are lying to us about 9/11, it means they are controlled by the same people who carried out 9/11.
Former NIST Employee Speaks Out On World Trade Centre Towers Collapse Investigation;
https://www.youtube.com/watch?v=RJ_jQgIEnI8&feature=youtu.be
London: View of Grenfell Tower in May (left) and during the fire on 14 June.
The building did not come down by fire.
http://buenavistamall.com/glenfelltower.png
Patriot
Very few of the customers here- or anywhere else know the truth about the Apollo Moon landings hoax, 911, the coup d’etat on 11/22/63 in Dallas, the Silent coup against President Nixon (aided by Bob Woodward and John Dean – among others), the Sandy Woods hoax (the school had been closed back in 2008 because of bio-hazards, non-compliance with Handicap regulations of public buildings etc.. – and was only being used as a storage facility). The road goes on forever.
Very few of the customers here- or anywhere else know the truth about the Apollo Moon landings hoax
If it helps you feel better, it’s harmless. You are a bore.
Desparado – Have another siip of the Kool Aid, You’re too desperate for your own good.
If he pardoned himself, would he not have to admit to high crimes or misdemeanors and would that not set him up to be impeached?
Paul, wouldn’t he have to be charged with a crime first?
Again, I’m not so sure the anti-Trumpers are thinking anything thru to include future administrations.
I imagine a post Trump removal period as one where vengence from Trump supporters would include removal of any instigators or enablers of his removal and replacement with new angry blood willing to demolish any Left administration and taking no prisoners. A couple of election cycles could bring in majorities that could do exactly that if the never Trumpers continue on this folly.
You know what goes around comes around, with a vengeance.
Roscoe Coltrane – prosecutors seem to be able to give immunity before they charge anyone with a crime. They just threaten a lot. So a blanket amnesty for his campaign staff could cover a multitude of sins, if their are any. 🙂
Paul, correct. But this is about Trump self pardoning.I don’t see him wanting to do anything that has an ounce of cooperation to it. He’s the queintsential bully playing the victim of bullying and he sees every fight as one he is responding to not starting.
I also think he has no problem letting things play out where most people would have either fessed up , compromised or surrendered when slapped with any insinution of a crime.
That’s what I love about him. We get to see things play out a couple of more steps and it exposes a richer level of the characters on all sides.
Roscoe Coltrane – supposedly Comey got a sweetheart deal from his buddy Mueller, so he will not do prison time or even time in Camp Cupcake. The latest is they are trying to turn Manafort, but what they do not realize is the Trump is a hands off manager. He discusses stuff, he signs contracts, but he really does not have anything to do with the day to day operation of the business. He is a CEO. If they think they are catching fish, it will never be Trump, he is too hands off.
What prison time would Comey face? Releasing a memo is not a crime no mattter how often you imply it is. He could have provided same info in interview with a reporter. Keep trying but please up your game.
Without looking carefully at Professor Turley’s previous articles, in which he lays out exactly how former director Comey’s actions regarding memos and their subsequent criminal release, may not be a crime on your part YNOT, but it does show a severe level of talking out of one’s ass when addressing the issue in such an uninformed manner as you have.
Just saying.
Might want to come to the gunfight with something more than a baby spoon.
Ynot – it is classified info. Giving up is against the law. Leaking is against the law.
Paul, you are too kind to the troll.
I admire your compassion.
Roscoe –
Have you noticed how Paul parses things to avoid having to deal with the essence?
Paul, I love “Camp Cupcake”. I always thought it was called “Club-Fed”.
Roscoe Coltrane – it was Club Fed before Martha Stewart, not it is Camp Cupcake. 🙂
Paul, Martha Stewart, that woman cracks me up. From saying the thing she missed the most in prison was lemons to using the N word in front of Snoop Dog she is such a character.
Nothing like reading a cogent, intelligently argued opinion of pros and cons on a complex issue, only to find blather, bromides, and bravado in the comments. This piece deserves far better.
So your comment on the comments is exactly what?
Deliver your scholarly retort as you please.
We are all waiting.
A president who can pardon themselves is functionally above the law, able to commit any act no matter how vile, heinous, or treacherous. There is no way that this is the intent of any of the framers of the Constitution or of the document itself.
Further, the Magna Carta Professor Turley, for whatever reason, when it comes to Donald Trump, you seem unable to see clearly.
I don’t think the framers could have imagined anything like the present situation, and therefore did not allow for it in the Constitution.
I suspect they presumed that future Presidents would be cut from the same cloth as Washington, Jefferson, Adams, Monroe, etc. Hah ! Were they wrong !
good article
I am absolutely disgusted by Trump and his antics.
I thought Obama was a potential Dictator…..this one is making him, look good. Such an idiot of a man….bringing all these “off the wall” ideas up.
I too, felt there was ” no there…there, in the Russian.debacle. Now? there’s a ton of evidence of earlier
dealings. I do not think Trump, is capable of a CLEAN act of anything.!! Impeachment, is the only answer.
A potential dictator followed by an actual one?
OK — someone please enlighten me – why is Trump looking at pardoning himself? What crime(s) has he committed?
Exactly ! These people are freaking idiots !
No wonder lawyers have such a bad reputation in the society . Another reason why lawyers should never be elected for any govt position of leadership !
Autumn, if you want a first hand look at the main characters and their nonsense on a daily basis read Joy-Ann Reid’s twitter feed. She posts Tribe’s tripe daily along with her emotionally driven drivel.
Harvard grads should be ashamed of those two.
Better off being ashamed that crook Jared bought his way in. Trump Kushner crime families work well together to screw the American people.
Look Ken, come back when your arguments are at least al dente.
Roscoe, Joyless is an idiot – amazing that she can even walk upright unaided!!
T rump knows he is guilty.
Well, in my opinion, Trump received many millions of dollars/rubles as financing for numerous of his development projects, when conventional banks would not loan to him. And, also in my opinion, Trump also owes something (or a lot of somethings) to Russia, Putin, and the Russian oligarchs in return. And the “something” payback is in the form of molding US foreign policy to be beneficial to Russia.
Now, all that is just my opinion. But maybe all this activity, if true, is not actually a crime, because no one would ever have imagined that a US President would do it. So, if not a crime – no need for a self-pardon, QED.
Tribe , the guy who had no problem in starting in the campaign ads of obama , and later defending his EO that was found unconstitutional by the courts ? He may have law knowledge but is dumb as a rock when it comes to common sense and recognizing conflict of interest . If you have put yourself in the campaign ad of a moron , at least don’t act like you can be objective when you defend that moron’s actions . No wonder his student turned out to be so ignorant of the constitution that he was supposed to be a part -time instructor of at a university (the only job he may have had outside being a parasite on govt salaries)
Just another get out of jail free card to someone that is totally corrupt, and the professor will on que roll over for Trump – SAD as we see the end of what little ethics and the constitution our government had left, seems to me that a pardon as being talked about is obstruction of justice, but I guess that is the normal now
Will President Trump abrogate the Constitution and commandeer the nation like “Crazy Abe” Lincoln who should have allowed freedom and free market forces to abolish slavery through boycotts, divestiture and other very effective non-violent, economic tools? “Crazy Abe” was a zealot and compelled to kill Americans to save Americans. That dudn’t make any sense.
It’s very difficult to imagine that President Trump would not respond appropriately if any actual crimes were proven – he would rapidly lose support. President Trump disagrees with “fake news,” “fake charges” and “fake crimes” and his supporters are similarly rational.
“Witch hunts” are not real. Witches are not real.
Shame you didn’t provide a cites and proof with your unsupported opinion covering 150 years. For now I’d take the conjectural theories with more than grain of salt, Which Witch it was, the wicked witch. No need to overly pontificate but be add an objective?.
If the clown has nothing to hide, why is he trying to hide so much?
Maybe he is the Manchurian candidate.
You have been very critical against Erdogan in Turkey–Yet, it seems you are essentially saying that Trump can do whatever he wants–it is a law school debate question no doubt–but here is one key point: A pardon assumes that a crime has been committed…..so, then should we assume Trump to be guilty?
I’m surprised that more people haven’t taken up the theme that Erdogan is just Trump — with a head start.
Only a King or Dictator can pardon himself and we don’t have a king or dictator in the USA
We did. have one of them for eight yearsl, Ignoringi the Law of the land on mulitiple occasions .and dictating a rule or something similar all on his lonesome.
Give it a rest loser, your ignorance is astounding. Obama’s administration was corrupt-free compared to any thuglican administration in recent years.
“Only a King or Dictator can pardon himself and we don’t have a king or dictator in the USA”
Wanna bet ?
One interesting thing about an unconditional pardon for all possible offenses is that, once the pardon is accepted, the person pardoned no longer has a valid 5th Amendment privilege against self-incrimination. They thus can be forced to testify in any investigation if any kind.
I always thought that Obama should have pardoned Scooter Libby and made him talk.
This is a very perspicacious observation.
Once a pardon is effected, the pardonee can be compelled to spill all the beans, and the truth of what actually happened will be public record.
The Donald works for the Russian mafia?
So? They are derived or descended from the elements of the USSR supported by your party platform primarily the International and natioinal sociaist groupings As such their ideology is straight out of Das Kapital, Mein Kampf etc etc. and that lineage is purely left wing
Would you say that the liberal governments of the Scandinavian countries are all “straight out of Das Kapital, Mein Kampf, etc etc”?
BTW, the government of the USSR was not really what Marx had in mind. The Bolsheviks and Stalin were much more bloodthirsty.
Jay S – Stalin was a Stalinist, meaning he did whatever he wanted. He was not a Marxist. The only Marxist I remember is Che.
I’m not particular convinced that the present Russian oligarchs and Putin himself are descended from Marx. More like Al Capone, I think.
I can’t imagine The Framers knowingly allowing for a loophole in the Constitution permitting a president to essentially reign supreme. It defies logic to assume some form of hidden agenda but I believe the more logical cause is that having a president pardon himself and escape his/her responsibility was unconscionable to the framers–meaning an omission in planning for this possibility. It is folly to believe that when drafting legislation or organizing a constitution that every contingency or possibility can be thought during the drafting of these documents.
Whatever the cause, the end effect must be decided and that venue is generally the various state supreme courts and the SCOTUS. We then must address what the intent of the legislature for statutes, and framers for constitutional questions was.
I agree that the mechanism in deciding the matter will be difficult as the various professors and our host mention and it can have grave consequences that could result in a constitutional crisis.
I suspect a remote possibility could be another amendment to the constitution.
Hopefully if the matter continues forward the question can be resolved with a balanced structural change and not partisan intrigue and anger or support towards particular individuals.
Well, he cannot reign supreme, because there is always an out that is available to Congress that the president cannot evade, and that is impeachment.
Impeachment at a bare minimum would remove the president from office where he cannot do any more damage.
There is another out contained in the Oath of Office “to the best of my ability.” Impeachment does not do anything it’s another term for a grand jury which only determines evidence of a potential crime. Removal which is all that can be done is after conviction and that is the trial phase. People make too much of the worrd impeach. Rarely with a correct understanding.
A “pardon” is an odd duck in constitutional hubris. When one in power “pardons” another person the one in power is exercising a right of office and power to help another human. “Pardon me” is a two word phrase which asks another human for a pardon. For Trump to pardon himself would be like a priest sodomizing himself. We know that priests are pedophiles but usually toward other humans, children, but not toward themselves. Trump is kind of like a pedophile priest who wants forgiveness so that he can keep on abusing children.
Damn the perfect fascist socialist.
This sort of ego maniacal perspective is the quintessential Trump. It exposes his hypocrisy and the hypocrisy of those who support him. As far as disgusting and vile goes, no one surpasses Trump.
Not true you just did so. along with Ruby. So when is The Party going to assign you a decent Programmer?
Issac, you keep conflating support for the office of the President of the United States as support for its current occupant. I think adversaries of Trump are not thinking this thru just like letting Obama use executive orders to bypass congress and now Trump uses that power to reverse those decisions.
Think about the future son and what powers we really want o give “our” guy and what will happen when “their” guy gets the office.
“a presidential self-pardon would be an abusive and ignoble act even if it is deemed constitutional. ”
Trump woukd like nothing better than an abusive and ignoble act. He would lap it up,
More conjecture, more wishful thinking but in the end all you did was create a second Bubba Blinton and as for lapping it up…… I think we covered that ability of your programmer. Did you get a shot of three inone oil yet?