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. I’m going to go out on a limb here and say if you asked any of the founding fathers this question, they would have said “NO! What part of we don’t want any kings in this country don’t you idiots get”. The salami slicers can try but allowing a President to pardon himself would effectively make him king..albeit a temporary one, if and until his party gets turfted out. To the originalists, among you consider who was writing the Constitution and what they were trying to avoid. I know it’s hard since your alleged interest in the original intent is generally just a cover for judicial activism but do it for the country!

    Don’t parse for me or pettifog, tell me what the founders wanted. They wanted NO KINGS.
    No pardon for Cadet Bone Spurs! Indict him now for god’s sake and let the jury have at him. He may win or he may lose but that is how it should work in the USA!

    1. Indict him now for god’s sake and let the jury have at him. He may win or he may lose but that is how it should work in the USA!

      Be patient, Mueller is still working on getting actual evidence of a crime that would support an indictment. I believe that’s still the way it’s supposed to work in the USA. Unfortunately that legal bar doesn’t seem to apply when securing authorization to spy…ahem, gather information on our citizens.

      1. I wasn’t suggesting that he be indicted without evidence! He should be indicted in the same fashion as any other citizen. That is my entire point. He is not above the law. .

        1. Haven’t you heard the news? He IS the law, since he runs the Justice Department. Or at least that’s today’s opinion.

    2. Pettifog! Now that’s a twenty dollar word right there. I agree with you about the desire to never have a King on both the part of the founders and most citizens today. So if that is the case what is it that makes a King a King and how is that different than what makes a President President? Is it absolute power?

      I am not so sanguine about the “temporary” moniker. Martial Law out of the question? Having a blue wave, a democratic speaker, Trump firing the VP, declaring himself unfit, forcing the speaker to resign to become VP, only to have the president declare himself fit, then fire the VP, rinse and repeat until the legislative branch reverts to its current supine posture.

      Two years ago I would have laughed at the above and called myself a crank. Now? Well here I am typing away publicly.

  2. The country is facing a “weaponization” of political competition dragging the intelligence and federal police-prosecution agencies into the process. There is no perfect solution to this, but I see these as helping CJS to “de-weaponize” themselves:
    1) Each citizen must be willing, no matter how passionate one feels about political issues and choices, to forego “gaming” of the CJS to achieve a political result. This requires a very thoughtful, principled approach, thinking about the long-term health of institutions. It requires self-discipline.
    2) Impeachment is reserved for “high crimes and misdemeanors”. Mere political distaste is NOT grounds for impeachment. A serious crime which oversteps the powers of the Executive must be proven to have occurred. Examples of impeachable offenses: Organized, illegal spying on opponents (as Nixon WH got caught doing). Orchestrating terrorist-like intimidation of political opponents (threats of framing and jailing them or their relatives and associates). A covert alliance with a foreign adversary nation or transnational or domestic criminal enterprise. Embezzlement of government wealth and assets. Use of military power for personal gain, or to quash domestic adversaries. Gross failure to perform expected duties of office – going on the lam. Commission of heinous crimes: murder, sex trafficking, kidnapping, vehicular manslaughter.
    3) During campaigns, we need a completely neutral Rapid Response Office of Election Integrity, staffed by professionals from DoJ, FEC, FBI, CIA, and empowered to rapidly investigate and resolve alleged misconduct and lawbreaking that is intending to affect the election outcome. Every campaign would appoint a lawyer to work closely with the RROEI, so that communications are tight and fast, and conspiracy thinking gets tamped down quickly. If we had an RROEI, then there would be a clear way the USG is prepared to work to keep elections fair. In order to serve on the RROEI, every staff would be vetted for neutrality, and would sign a pledge of acting in a completely neutral manner towards the outcome of the election, the overriding goal to minimize post-election and pre-election claims of “rigging”.

    1. pbinca – so, you found your five neutral people to monitor elections, how are you going to spread them across the country. 😉

    2. “The country is facing a “weaponization” of political competition ….”

      ****************
      Even poorly dressed Mao knew that “politics is war without bloodshed and war is politics with bloodshed.”

    3. Please quit trying to manufacture your own personal concept of perfection.

      We have a constitution – it provides a basis for our law and government.

      With respect to elections – this Russia garbage should have exposed the unconstitutional nature of many of our election laws.

      Even if you buy the entire Russian influence nonsense and manufacture facebook and twitter adds from thin air. Most everything the Russians purportedly did was attempt to persuade.

      In the end if you beleive that it is necescary to control persuasion – you might as well give up holding elections. No one is entitled to decide who can attempt to persuade who.

      Thus far there is no evidence that voters had a gun to their head.

      Not that it matters, but no voter has come forward and said “damn but for that RT tweet comparing Clinton to Satan I wouldnt have voted for Trump”.

      There is no evidence that voting machines were hacked – Trump setup a commision to look into that but democrats balked and killed it.

      2016 was decided by the voters.
      My grandmother voted for the most handsome candidate. Historically the candidate with the shortest last name wins.

      There are myriads of reasons that people have for voting for candidates. Most of them are stupid.
      We are not allowed to make laws that say stupid people can not vote, or that people can not vote stupidly.

      Nor do we have the right to say who is permitted to engage in persuasion.

      The only things you need to and are allowed to do regarding elections is to assure that votes are counted as cast, and that no force is used against voters. That is it. All other actions by government regarding elections are illegitimate.

      There is nothing for a “rapid response team” to respond to. Because nearly everything you want the to respond to is or should be legal.

    4. Further – you clearly have way too much faith in government.

      Comey and McCabe swore oaths to tell the truth – it has been proven they did not.
      Why do you beleiver that others who pledge neutrality will be ?

      I do not know your ideology, but you are making a standard large set of “public choice” errors
      You are making the same error the communists make over and over. You are designing a system that will work with perfect people. Communists continue to assist that it has never really been tried – they have not yet gotten the true uncorruptable communist leader. Any system that demand human perfection will fail.

      Our founders designed a system that they hoped would work even with fallible corrupt humans.

      Start thinking that way. You can not make people honest or neutral by making the swear to be .

  3. Art. II, Sec. 2 provides ” … [The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Seems to contemplate broad pardoning power with the only prohibition being against impeachment — even for the pardoner.

    1. Mespo, excellent!

      Now please take a sabbatical to read for the SCOTUS Article 1, Section 8, Clause 1, canceling the entire redistributive welfare state in the process, understanding that taxation shall be for “general Welfare,” omitting and, thereby, excluding any and all “individual welfare”:

      Article 1, Section 8, Clause 1

      “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;…”

      “General Welfare” being roads, electricity, water, trash, sewer, currency, post office (archaic), telecom and other commodities, resources and services used by all people in similar amounts (no, people do not enjoy eating the same singular food) and with similar frequency which facilitate the “all” “well” “get along” or general welfare.

      It is the very nature of freedom to be free from governmental dictatorship and robbery.

      Further, explain to the SCOTUS that “Affirmative Action Privilege” and quotas are unconstitutional and not superior to the right to private property, including the possession and disposition thereof, which Madison defined as “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” It is either constitutionally private or communistically public and “never the twain shall meet.”

  4. If President Obama talked about pardoning himself, I’m sure conservatives would have been onboard.

  5. Trump kills Presidents of CBS ABC NBC and CNN – pardons himself. Country approves.

    1. Kinda like old “Crazy Abe” Lincoln did upon his “Reign of Terror” – shred the Constitution.

      1. George:

        Never happened. He actually followed the Constitution as interpreted in suspending habeas corpus to weed out the Copperheads.

        1. Post facto.

          Lincoln’s only legal and constitutional option was to withdraw USA forces from the foreign sovereign nation of the CSA. Secession is not rebellion or insurrection and secession is not precluded by the Constitution. The British colonies seceded becoming the USA as have Catalonia, Scotland, West Virginia, Pakistan, Bangladesh, every nation in the former Soviet Union et al. The instant the vote was counted, the CSA was legitimate. LIncoln’s endeavor was legally and constitutionally concluded at that moment. Lincoln’s actions were criminal from that point. Habeas Corpus could not be suspended in the de facto condition of secession.

        2. The Constitution is written in plain English and does not need “interpretation.” “Interpretation” is a euphemism for illegal nullification.

  6. Of course he can pardon himself, but the founding fathers never expected the POTUS to be tried by a jury in criminal court. The POTUS is tried by the Senate and Impeached by the House.

    After the POTUS has left office, he’s like any other citizen. This is just another big nothing burger.

  7. The cult figure currently residing in the White House may be able to pardon himself after his trials (in absentia, perhaps) and convictions of multiple crimes, but the dark stain he leaves on the GOP, the presidency, democracy the constitution and America is unpardonable and will have lasting and damaging consequences.

  8. There is nothing to say he cannot pardon himself, it is a flaw in the Constitution (or not).

      1. It was never a flaw. How else could a gang of murderers and thieves protect themselves after implementing their dictatorial power?

        One might argue that the whole Constitution is a flaw however. The fact that it was born in a Spirit of flagrant usurpation. The delegates to the Convention were only authorized to amend the Articles of Confederation, not scrap and replace them.

  9. People seem to forget that impeachment actually requires that the president has committed a crime. Just because you do not like his personality or his policies does not constitute grounds for impeachment. Being an ass is not an impeachable offence.

    1. No. All that is required is that the House of Representatives vote for Articles of Impeachment.

      Even I know that.

  10. The only legal remedy given in the constitution for removing/charging/coercing a President is impeachment. I don’t understand why people have such a hard time with this. Because he is the head of the executive branch, he can simply refuse to do, or comply with anything his employees request or demand of him. If this is untenable to the American people, he will be impeached.

  11. The problem we are having is that the founders never envisioned a person with Trumps character and morals winning the Presidency

    1. Of course they accounted for such a President. It’s why impeachment was included as a remedy.

  12. So let him pardon himself, clearly setting himself up for impeachment and it doesn’t protect him from the state courts.

  13. The letter that Dowd and Sekulow sent to Mueller falsely joins the pardon power to the supposed impossibility that a POTUS could obstruct justice under the circumstances of exercising Executive powers granted under the Constitution. It is that false joining of the pardon power to the supposed impossibility at issue that has resurrected the arguments about a self-pardoning President.

    Accordingly, if The POTUS cannot be indicted while in office, and if The POTUS cannot be subpoenaed while in office, then the established process for presenting a pardon in a US Court for judicial review of the validity of the pardon could not be initiated unless and until the self-pardoning President were Impeached, tried, convicted and removed from office so that that self-pardoning POTUS could be subpoenaed and indicted. Then, and only then, would the validity of the self-pardon be subject to judicial review.

    Surely that course of action would violate the Oath of Office for The President of The United States. Surely such a violation of the Oath of Office would be indefensible at Impeachment hearings in The House of Representatives and indefensible at an Impeachment trial in The United States Senate.

  14. @Shannon. People on the left often have their heads exploding over what they think might happen. Or what they are afraid might happen. Their heads are never exploding over what is happening because they never know what actually is happening.

    1. Bill H

      People on the left are citizens who don’t believe that Trump is the best president ever.

  15. The constitution writers left out that first one must be convicted before one can be pardoned.

    1. David Benson still owes me two citations, one from the Oxford English Dictionary. Theoretically, Trump could pardon himself for all federal crimes committed prior to and while in office. Then just put it in his desk and pull it out when Mueller wants to chat with him.

        1. David Benson still owes me two citations, one from the Oxford English Dictionary. Scientists (and you claim to be a retired scientist) show their work. Show it!

  16. I can’t get past the following paradigm(s).

    President executes/kidnaps all four “liberal” S. Ct. Justices, and then pardons himself. Giuliani says… no problems. Trump packs the Court.

    President debates Democratic presidential candidate. Gets angry…shoots opponent. Pardons self. No one wants to run.

    Anybody counting on that weak-kneed Republican majority to stand up?

    1. Homicide isn’t a federal crime. Out of which Cracker-Jack box did you get that law degree?

      1. So what’s it called when you kill someone on federal land? Say national park or DC?

        1. Our founders constitutionally limited the amount of “federal land” fairly severely.
          Further they did not provide the federal govenrment with a general police power.

          The constitutional norm is “dual sovereignity” – a murder in a federal park should be properly prosecuted by the state or local law enforcement. And for much of US history it was.
          DC has a local government

  17. I think the President Trump haters heads have exploded! Our President would never pardon himself…despite the constant BS, he’s done nothing wrong BUT the very suggestion for the left will have their heads exploding. LOL

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