Trump Can Indeed Pardon Himself . . . And We Should Now Never Speak Of This Again

440px-Official_Portrait_of_President_Donald_TrumpBelow is my column in USA Today on the assertion of President Donald Trump that he can pardon himself.  Since such an act would be the most profoundly disgraceful moment in the history of the American presidency, it is chilling to have a president to even engage in such a public debate.  However, I believe that such a power does exist in the Constitution. It is a long and unresolved debate that turns on how you interpret silence.  Since the Constitution is silent on any bar against a president benefitting from this power, I believe that a self-pardon is indeed constitutional, even if distasteful. 

Lord, protect us all from “really interesting constitutional” questions should be part of every inaugural prayer. This weekend, Trump counsel Rudy Giuliani described as a “really interesting constitutional argument” his contention that the president “probably” could pardon himself.

“Really interesting constitutional argument” for presidents fall in the same category as “really interesting improvised explosive devices” for bomb disposal experts. They are interesting to the same degree as they are lethal.

President Trump appears on course to answer many such “interesting questions” on the meaning of emoluments or the ability of prosecutors to charge a president with obstruction in firing senior executive officials. The answers to some of these interesting questions are not likely to be the ones that Trump hopes for.

For example, despite the bravado of the recent letter to special counsel Robert Mueller on Trump’s ability to simply ignore a subpoena, Mueller is likely to prevail in such a fight. However, on self-pardons it is Trump who has the advantage, though this is one interesting question he would be wise to leave unanswered.Whether a president can grant himself a pardon is a question that has long fascinated academics. It has never been answered since, thankfully, no president had had the reason or the temerity for such a self-dealing abuse of power. Trump’s recent uses of pardon authority, however, are widely viewed as signaling to Mueller’s targets that the president could act to gut the investigation with a barrage of pardons, including for himself.

In his emblematic (and enigmatic) style, Trump’s longtime friend (and potential target) Roger Stone took to the airwaves to translate the president’s hidden message: “The special counsel has awesome powers, as you know, but the president has even more awesome powers.”

To use Stone’s “awesome” rating of powers, pardon authority is … well … the awesomest.

Article II, Section 2, of the Constitution defines 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.

As a textual matter, there is nothing to prevent Trump from adding his own name to the list of pardoned individuals. And Trump agrees, according to this tweet from Monday morning:

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!

Some have wrongly claimed that a line in the Constitution bars self-pardons. Some — such as Harvard professor Laurence Tribe, Minnesota professor Richard Painter and Brookings Institution fellow Norman Eisen have claimed that the final words of Article II, Section 2bar self-pardons. They claim that “the Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal,” and “that provision would make no sense if the president could pardon himself.”

While there are arguments against self-pardons as improper forms of “self-dealing,” this is not one of them.

The language in question has nothing to do with a self-pardon or even most pardon controversies. It simply means that a president cannot use pardon authority to prevent the impeachment of an executive branch official (including himself). Thus, if Trump pardoned himself, it would not bar an impeachment. Indeed, it could well be included among the articles of impeachment.

A simple line is drawn in the Constitution: Impeachments concern the office holder, while pardons concern the individual. A president can pardon someone who is not even charged with a crime, but that pardon for a judge or an executive branch official will not bar removal from office.

That makes perfect sense. What does not make sense is the idea that the Framers would debate this and other presidential powers while leaving this major limitation unstated.

These authors and others also point to a line in the impeachment provision that states anyone impeached and convicted “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Again, this only states that impeachment does not alter the status of these officials. They remain liable for prosecution. Again, impeachment goes only to their status as an office holder. Indeed, a judge or official could receive a pardon before assuming office.

None of this is to say that this is an easy question, or that there are not good arguments for barring self-pardons. I wish the Framers had put in such language, but they did not.

Presidents have engaged in all forms of self-dealing. Trump has engaged in open nepotism with the selection of his family members as high-ranking White House officials. Bill Clinton not only appointed his own wife to head a major federal commission on health care but pardoned his own half-brother. The Framers did not bar such forms of self-dealing any more than they barred self-pardons. What they did put into the Constitution is a process for changing such provisions, not through judicial fiat but constitutional amendment.

There is no evidence that any president has ever seriously considered such a reprehensible and ignoble act. Giuliani denies that Trump is considering such a move and admitted that such an act is likely viewed by the president as “unthinkable and (would) probably lead to immediate impeachment.”

That would be more convincing if the Trump team were not threatening total war with Mueller over the special counsel’s authority and the president’s inherent powers.

The Trump team should think seriously about triggering these fights over subpoena, charging and pardoning powers. Bad cases can make bad law — even when they are “really interesting.”

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley.

235 thoughts on “Trump Can Indeed Pardon Himself . . . And We Should Now Never Speak Of This Again”

  1. Has anyone thought about the possibility that all these controversies are created by Donald Trump to remain in news and finally come out at as winner during the 2020 presidential election. He may have realized he cannot deliver the promises he promised during the election and created new issues to portray himself as a winner.

  2. Prof. Turley:

    What does not make sense is the idea that the Framers would debate this and other presidential powers while leaving this major limitation unstated.

    Perhaps the founders took for granted the character of persons elected to the Office of the Presidency. And, when in our history have we ever had someone in the Oval Office who would have ever had the need to consider pardoning themselves.

    I imagine the founders would find 45’s ruminations on self-pardon (and yours) absolutely ludicrous.

  3. Really don’t understand how some of you people can be SO STUPID as to not understand that if Trump can commit ANY CRIME and then pardon himself for the commission of it, thereby suffering NO PUNISHMENT, that that is the very definition of the power of a dictator. If you’re good with the U.S. having a dictator at the head of its government, you should say so.

    1. that that is the very definition of the power of…[tyranny]

      Exactly.

      “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” James Madison, 30 January 1788

  4. Trump pardons himself, he gets impeached, the Mueller investigation shuts down after turning all evidence over to state AGs who issue indictments for money laundering and various other chicaneries. The show will continue. Just hope that Mueller already has enough to force Pence to resign first.

  5. Did you know that Sergei Millian offered George Papadopoulos $30,000 a month so long as he remained working for the Trump administration–which he never got to do of course–because Flynn never got a chance to hire Papadopoulos–because Flynn got fired–because–you know–Comey!!!

    He who will not be deterred, Robert Swan Mueller The Third, knows all about Millian’s offer to Papadopoulos. And that’s not all Mueller knows. Guess what? Mueller knows all about Millian’s business transactions with Trump’s favorite architect, John Fotiadis.

    Can you say money laundering? Do you know what money laundering means?

    1. From CNBC:

      Between 2007 and 2013, Fotiadis designed all or part of six Trump-branded developments: a Trump Tower in Kazakhstan; a Trump-branded seaside resort in the republic of Georgia; a 47-story Trump Tower in Tbilisi, Georgia; hotel rooms at the Trump Tower in Istanbul; a Trump movie studio complex in Florida; and major portions of the Trump Parc Stamford, a condominium tower in Connecticut.

    2. More from CNBC:

      The McClatchy news service reported in April that Mueller’s probe was looking more closely at the people involved in Trump’s dealings in three countries, Georgia, Kazakhstan and Russia.

      Around this time, CNBC received a tip that Fotiadis had worked on several Trump projects in Eurasia. Curious about his professional relationship with Trump, CNBC reached out to Fotiadis on April 11 for comment about this work.

      Fotiadis did not respond to a call or an email. But eight hours later, he announced on Twitter that he was closing his firm, John Fotiadis Architect, or JFA, after 10 years in business. A few days later, Fotiadis closed the Twitter account he had used to announce he was closing down his firm.

      By the end of the week, all the content from Fotiadis’ professional website, including his portfolio, had been removed, leaving only a notesaying he planned to join a New Jersey-based engineering company.

      Gone was Fotiadis’ impressive portfolio of 30 projects (some of which are pictured below), including villas, schools and office buildings he has designed for clients around the world. Also gone was any reference to the two overseas branches of JFA that he had opened — in Tbilisi and Kiev, Ukraine.

          1. She was the one who made the claim that Sergei Millian offered her husband $30,000 if he had a position in the Trump administration.
            I haven’t seen that claim verified; I’m sure that Mueller is aware of her claim, but I don’t know if he’s either confirmed her claim or discredited it.
            Sergei Millian is thought to be a source of some of the allegations in the Steele Russian Dossier.
            If in fact he was going to pay big bucks to Papadopolous it may have been to “get dirt” on Trump.

              1. The $30,000 a month claim is in the court filing for Papadopouolos’ plea agreement. Millian is referred to in that plea agreement with a general descriptor rather than his actual name. All Mangiante did was confirm the identity of the person given the general descriptor in the plea agreement as Millian. Mangiante has been feeding information to Chuck Ross at the Daily Caller for quite some time now. For instance, Mangiante is how we know who Ivan Timofeev is.

                Meanwhile, given that Steele knew nothing about Papadopoulos, Mifsud or Timofeev, it is unlikely that MIllian was a source for Steele. Although, from the point of view of we ordinary schlubbos, that possibility has not yet been officially eliminated.

                1. Sergei Millian was named as a likely source for the Steele Dossier by the WaPoast, ABC News, and Business Insider, among others.
                  David Corn and Michael Isakoff, both of whom seemed get information directly from Steele, also identified Millian as a likely source.
                  If Millian’s contacts are to be examined in depth, it would be a good idea to check his association with Fusuion GPS and Steele.

                  1. Milllian knew about Papadopoulos’ contact with Timofeev. Steele did not know anything about Papadopoulos, let alone Papadopoulos’ contact with Timofeev. If Millian was a source for Steele, then Millian concealed from Steele Millian’s knowledge of Papadopoulos and Timofeev. And that’s the exact sort of intelligence for which Steele was looking. Meanwhile, Millian was suspected of having been Steele’s source for the urolagnia allegation and not any other intelligence that Steele gathered. The urolagnia allegation is likely to be disinformation planted in the dossier to discredit the dossier. Millian’s concealment of his knowledge of Papadopoulos and Timofeev would tend to bolster the notion that the urolagnia allegation was planted as disinformation to discredit the dossier. But it’s still possible that Millian was not a source for any of Steele’s intelligence and that the urolagnia allegation was plantd by someone other than Millian.

                    1. Glenn Simpson gave detailed, extensive Congressional testimony in which he all but identified Millian as a key source for numerous allegations found in the dossier.
                      Simpson’s testimony was a big reason why the publications that I mentioned identified Millian as an important source for the dossier.

              2. Wait a second. The L4D post immediately below this one is technically inaccurate.
                Millian is referred to as Foreign Contact 2 in the Papadopoulos plea agreement which includes an FBI affidavit attesting to Papadopoulos asking FC2 [Millian] for background information on Timofeev. The $30,000 dollar a month offer from Millian is not–I repeat not–in the plea agreement.

                1. Strike “below” and make it “upstream” instead. Millian’s offer of $30,000 a month to Papadopoulos is a new wrinkle in what’s beginning to look like a true love story between a couple of crazy kids, George Papadopoulos and Simona Mangiante, who met, fell in love and got married in the midst of the maelstrom of Russia’s efforts to cultivate members of the Trump campaign. Stranger things have happened. You know.

                  If Mangiante were a Russian honeypot, then she would not be so eager to implicate Millian, Mifsud and Timofeev in Russia’s active measures campaign. If Mangiante were a “Western” honeypot, then she would not be so eager to defend her husband, George, nor to feed information to The Daily Caller, nor to ask Trump to pardon her husband, George. Therefore, as strange as it may seem, George and Simona are a couple of crazy kids who met, fell in love and got married whilst everything around them was going seriously sideways. It couldn’t have happened to a more lovely couple.

  6. Marky Mark Mark, Wildbill, Peter Hill, Nutchaha are all Deep State tools / bots – never really address the issues do they? Sad!

    1. Here’s something to address: why your ilk, the left-behinds, gullible rubes, dupes, and klan-lite wannabees hate America so much that you continue to support such a “cruel, scatterbrained demagogue” over the country you apparently hate.

      https://www.nytimes.com/2018/06/08/opinion/trump-fema-speech.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

      1. A self-pardon cannot exonerate Trump for any of his political offenses against the United States.

        1. L4D is enabling David Benson – if the offenses are federal, then yes, the self-pardon wipes the slate clean.

  7. Professor,
    Before you let Trump pardon himself, you need to deal with the disappearance of Cambridge Analytica, the disappearance of Psy-Group and the vanishing of John Fotiadis Architect. There’s a lot going on that is not ordinary.

    1. yah, that would be great give that CA director lied about Assange. How about having Assange testify on C-Span to Congress? Oh, but the Dems and RINOs wouldn’t want that would they?

      1. The CA director lied and refused to answer questions in Parliament. Psy-Group principals can’t seem to be found. Ditto Fotiadis. Wonder why?

        1. HW – also the day that Assange was cut off was when he was supposed to testify to Parliament.

      2. Julian Assange can testify before Congress anytime he likes. All Julian has to do is step outside the Ecuadoran Embassy in London to be arrested by our cousins across the pond who will then extradite Assange to The United States of America to be arrested by the Federal Bureau of Investigation.

        The only person silencing Julian Assange is Julian Assange. And that’s exactly the way Autumn needs it to remain.

  8. Yo Dems – if you truly believe in free and fair primaries here’s where YOU can sign up:

    Tulsi Gabbard
    ‏Verified account @TulsiGabbard

    As a Member of Congress, I’m a superdelegate – but my vote should not have more weight than yours. It is unfair, undemocratic, and undermines the standard of one person, one vote. We need to end superdelegates. Sign our petition: http://tulsi.to/superdelegates

  9. So this is where we are as a nation, writing and talking about a unfit con-man who claims he can pardon himself from anything he wishes. Kinda like putting a fox in charge of the hen house. So, he can throw out his oath of office to preserve, defend, and protect the constitution because if he breaks that promise so what, he can just claim a pardon and do anything he wants. So wave your flags and your copies of the constitution all you want, it does not mean a damn thing.

    1. a unfit con-man

      He’s actually actually the most accomplished man to mount a consequential presidential campaign since Eiisenhowr’s swan song. The only people who approach him would be Stuart Symington, Jimmy Carter, George Bush the Elder, Bob Kerrey, Wesley Clark, and Mitt Romney. There were some others with executive stature and experience (Michael Dukakis, Ronald Reagan, Mike Huckabee), knew how to work Congress (Robert Dole, and, to a lesser degree, Bill Bradley), were satisfactory wonks (Michael Dukakis, Bill Bradley), or were idea men (Ronald Reagan, John Anderson, Pat Buchanan, Steve Forbes, Alan Keyes, Ted Cruz). Trump’s only unfit on one metric: a cultural scale. If you wanted to keep that standard, you should have thrown the Clinton’s over the side twenty years ago.

      1. “most accomplished”, you are delusional. Romney and tRump’s only accomplishments were being born rich.

        1. Romney and tRump’s only accomplishments were being born rich.

          No, both built very lucrative businesses. Sorry you don’t know how to do that, but that’s no excuse for lying about others.

          1. I think Romney and Trump are both sharpies, but there’s a difference. Romney skirts around the law and loopholes and offshore accounts. Trump engages in quid pro quo and money laundering and conspiracy to defraud the voters.

            1. hmm, sounds like HRC with the Clinton Foundation “donations” during her SOS tenure and quid pro quo. Let’s investigate both thoroughly.

            2. I have no clue who you think you’re fooling with this pretense. You’re not his accountant.

              Romney’s in the private equity business. He provides capital to turn around failing businesses. Trump’s businesses – commercial real estate, hotels, resorts, entertainment and media, franchises, could not be more obtrusive.

      2. Excellent…But, but, but, THE CLINTONS!!??!!?!??! Thanks for checking in yet again with the Pravda Faux News talking points. You’re dismissed.

        this is to “I have hannity podcasts piped into my head while I’m sleeping” nutty sufferer

  10. “Article II, Section 2, of the Constitution defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
    ____________________________________________________________________

    Congratulations!!!

    Professor Turley, it is a simple, straightforward task for you and all Americans to read the “manifest tenor” of the Founders in Article 2, Section 2.

    Why and how is it not possible that you grasp, espouse and expound on Article 1, Section 8, Clause 1, which precludes any and all forms of communistic redistribution of wealth by limiting the power of Congress to tax merely for “…general Welfare,” omitting and, thereby, deliberately excluding the power of Congress to tax for “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;…”

    The fact that the Founders deliberately precluded and excluded any and all forms of redistribution of wealth is authenticated by Marx’s introduction of compulsory redistribution of wealth in the Communist Manifesto 59 years after the adoption of the American Constitution. If the Constitution had intended for redistribution, Marx would have never perceived a need to create it.

    Professor Turley, the entire American welfare state is unconstitutional.

    Please tear down this wall!

    1. Please post more of this type of material.

      this is to “in the universe I inhabit, Lochner is still good law” georgie

      1. Excerpted from the article linked above:

        Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.

        1. Mark M., does this mean that George is opposed to States’ rights? Or is it just more atavism as usual?

          1. One our our resident wingnuts, georgie, want to travel back in time to another era, where (old white male) robber barons ruled, labor survived at the whim of the owners of capital, Social Darwinism was openly subscribed to, and it was a dog-eat-dog of devil take the hindmost. He imagines that the Founding Fathers were Just Like Him, and so also cared not for their fellow citizens. Obviously, georgie, like our other wingnuts who subscribe to such fantastical beliefs, have not thought through to the end-game results of such an economic and cultural theory of existence.

            this is in response to late4dinner question

            1. Thanks, Mark M. I suspected as much. All the same, I further suspect that George’s position is that States’ rights are for slave States, only–no free States allowed in the State’s rights club.

              1. L4D is enabling David Benson – declaring yourself a Sanctuary State is a states’ rights issue. Is CA a slave state?

      2. Normally I don’t engage your rubbish but I am always open to attempts at contradiction, feeble or otherwise, of the literal words in the Constitution. Thank you for publicly presenting your failure. “Lochner,” like Roberts on Obamacare and his irrational and criminal commingling of the definitions of the words state and federal, as but one example, is less factual and legitimate than the O.J. Simpson verdict.

        I do thank you for your concession.

        Any and all forms of redistribution – the entire welfare state – are unconstitutional as Congress and the states, as a corollary, have no power to tax for “individual welfare,” merely “…general Welfare.”

        America is not a theocracy, charitocracy, a covetocracy or even a one man, one vote democracy. The Founders established a republic in which “…supreme power resides in a body of citizens entitled to vote.”

        It’s important for Americans to know that, through the abject and insidious failure of the Supreme Court, communists have taken over their country. That “Lochner” is a corrupt failure is not a surprise.

        Whatever will Americans do when they finally discover that they are supposed to be free from the current redistributionist and socially engineered communist dictatorship?

        1. Please post more of this type of material. It reinforces my smug sense of self-superiority.

          this is to “I’ve got the lights off, the doors locked, the meds set out in a finger bowl and I’m ’bout to git drunker than Cooter Brown on brandin’ day” georgie

  11. I’ve been seeing comments/tweets like this one more and more – from Trumpsters and Indies who do not trust the Justice Dept.

    —————————————————————————-

    General Deplorable
    ‏ @HouseCracka

    Jeff sessions and Rod Rosenstein should hang because what they’re doing right now behind closed doors is there scrubbing the IG report protecting deep State criminals that’s what they’re doing.

    ————————————————————————————————————-

    So, if the IG report is indeed “sanitized” would Trump be able to demand the original unredacted one?

            1. By taking seriously some whack job who says “Jeff sessions(sic) and Rod Rosenstein should hang”?

              No thanks.

                1. Perhaps it would be better if you avoided using tweets from whack jobs to make your points? The IG report will come out on June 14th and will be highly critical of Comey.
                  That’s practically a given at this point, the fears of paranoid whack jobs notwithstanding.

                  1. Well, I like to be tuned in to what folks are talking (tweeting) about to gauge the national “temp” on issues – if you don’t like my posts there is a SCROLL feature. You know, free speech and all that……..

                    1. Part of your problem may be getting your information from Zerohedge, the Wall Street version of Infowars.
                      Maybe you should upgrade to The Wall Street Journal.

                2. Haha. Awan. Rich.

                  this is to “I’ve got a lot more neato conspiracy stuff to cut and paste” autumnic

                  1. Marky Mark Mark. You would LOVE for the Awans bros and Seth Rich to go away. But they are not. Sadly (for you and your ilk) indies from both the Left and Right are fixated……………

                    1. Haha. Nice. I regret to inform you that real people don’t reference these non-entities in any way at any time, except to ridicule the wackjob wingnuts who still let Pravda Faux News get them all hot-and-bothered about the big “nothingburger.” But that hat looks good on you though.

                      this is to “I wanted to get a ‘Hannity was here’ tattoo across my lower back, but they said it would hurt” autumnic

      1. FWIW, Mifsud’s handler and paymaster, Steven Roh, says Mifsud is in Italy. But then you already knew that; didn’t you, George?

      1. wildbill99 – the WH was in charge of the operation, according to the text msgs, so where is Misfud, Obama?

        1. In a safe house run by the Illuminati.
          Crazy George addressed this very point last friday.

  12. Criticism on Giuliani is on target. It’s not an interesting debate. If ever a President pardoned him/herself, then we are surely looking at a situation where there are enough people willing to come to the President’s defense to buck the Justice system. This isn’t a debate-type situation. This is a stand-off.

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