Yes, the President Can Pardon Himself

440px-Official_Portrait_of_President_Donald_TrumpPresident Trump this morning has caused a stir by declaring that he can grant himself a self-pardon.  As I argue in today’s column and prior writings (here and here), he is right.  

In his tweet today, Trump declared:

Donald J. Trump@realDonaldTrump

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!

I am one of those scholars, though I have argued that a self-pardon would be ignoble and self-defeating act.
It would likely be used as an impeachment allegation, though that could raise some interesting questions. Unlike the argument that a President cannot be indicted in office (which I have long rejected), the use of pardon authority presents a more difficult question for both obstruction and impeachment claims. This is a power left to presidents without limitation beyond barring its use to effectively block an impeachment.
To use pardons in an obstruction case would be a complicating factor for appeal.  All pardons are about negating a conviction or barring a prosecution.  They are in the sense naturally obstructive.  A court would have a difficult time separating what is constitutionally permitted and what is criminally actionable over a straight pardon claim.  Impeachments allow for a broader definition to address abuses of powers.
What do you think?

 

196 thoughts on “Yes, the President Can Pardon Himself”

  1. The concept that Trump could pardon himself for (whatever offense he’s committed that he thinks he needs to pardon himself for) is ridiculous. The pardon power cannot possibly apply to the person holding the power; that way lies dictatorship.

    1. LOL! You said that way lies dictatorship. That’s cute. 😉

      Would you (did you) have the same reaction when a president made the following statement? “We can’t wait for Congress to do its job, so where they won’t act, I will.”

      1. Hell of a difference between putting yourself above all laws through the completely illogical and improper use of the pardon power, Olly, and using your inherent (actual, constitutional) powers as president to do some stuff you legally can do, as ALL presidents have done at least since the post-revolutionary days.

        Seriously, what do you think Trump COULDN’T DO if he had the power to pardon himself for having done it afterwards? Under what idea of a “republic” or a “democracy” would that happen?

        1. Hell of a difference between putting yourself above all laws through the completely illogical and improper use of the pardon power,

          The pardoning power does not put the president above all laws. It is a subordinate power to congresses power of impeachment. The fact is he is correct about his pardoning power; it just hasn’t been used by a president to pardon himself. He won’t use it on himself and he won’t need to.

          1. The left can not grasp this.
            The rule of law is not the rule of the law you wish you had.

            If you do not like it, change it.

            I would probably support a constitutional amendment that prohibited a president from pardoning themselves.

            Though it is not something I care deeply about.

            But that is NOT the law we have now.

            No man being above the law – means the actual law.

            1. The rule of law is not the rule of the law you wish you had…If you do not like it, change it.

              The Left is fortunate to have conservatives that don’t want a weaponized administrative state. We want the actual law. They are far too ignorant though to appreciate it. Instead they project what they would do with that power onto conservatives and then go running for the hills.

    1. seems to me that this is likely a purely academic exercise as Mueller probably feels bound by prior opinions that the DOJ will not indict the president.

      And no doubt impeachment and removal first is the method preferred by the constitution. But if a president, while in office, were indicted for or convicted of a federal offense, it’s bizarre to me that he could pardon himself, placing himself, with no one else to account to, above the law. This flies in the face of the concept of rule of law.

      And it makes the question of legal guilt and punishment for a crime of which he stands convicted dependent upon the vagary of the calendar. If he’s convicted prior to midnight of January 20 before the next president takes office, he walks away free. If the judgment is delayed a few hours, he’s guilty.

      Other than the absence of any qualifier in the text (“he shall have power to grant reprieves and pardons for offenses against the United States”), except in cases of impeachment, is there a historical or doctrinal reason to believe that a president may pardon himself? I’d think that we ought to interpret the constitution so as to avoid an absurdity such as that a president is not bound by federal criminal law.

    1. David Benson still owes me two citations, one from the OED Maybe you, Mr. Scientist could rub two sticks together, create some fire, light a torch and bring a light to our little parade.

      1. Alas, I still understand little of the law.

        But I no enough to know that I never contracted to provide you with anything. You grow exceeding tiresome. Get a life.

        1. David Benson still owes me two citations after two weeks, one from the OED. Getting those two citations IS my life.

  2. Prof Turlery:

    A few questions:

    Based on what is stated in Article II, Section 3 of the Constitution:

    and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    Wouldn’t it depend on whether a sitting president is impeached and convicted in order to pardon oneself? For say, something such as treason? Is treason pardonable? Did Hamilton imply in Federalist No.74 that a president could pardon himself or herself before being impeached?

    I dare say 45 would resign (one can hope) first rather than be subjected to impeachment hearings – and of course, it all depends on what Special Counsel Mueller determines in his final report to the DOJ. And, what actions Congress would take if its members were inclined to impeach 45 for “treason, bribery, or other high crimes and misdemeanors”.

    The Constitution seems clear. And, it seems apparent to me (just barely a novice) that a president cannot be indicted and convicted while in office. Congress has sole authority.

    <blockquote The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    Much to my chagrin, this is all “much ado”. Trump needs to stop tweeting garbage and stirring the pot.

    In light of court filings today, however, it greatly disturbs me that Trump associated with the likes of Michael Cohen and Paul Manafort.

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