Yes, Trump Can Pardon Himself But He Should Not Do So

Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”  This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not change because the subject of the analysis is now President Donald Trump.

Here is the column:

It seems the subject of Donald Trump, like necessity, is the mother of invention, at least when it comes to legal analysis. From bribery statutes to constitutional provisions, legal experts routinely and unfailingly conclude that Trump or his family can be prosecuted or impeached for an endless array of misdeeds. Even theories denied by the Supreme Court are seen as valid when used against Trump. Now the same certainty has been declared on whether Trump can grant himself a pardon. One of the longest standing debates in constitutional law is dismissed as ill-informed by some of the same experts.

His role as a catalyst for clarity was apparent in an interview by Harvard professor Laurence Tribe. After host Lawrence O’Donnell said he believed a president could give himself a pardon, Tribe proclaimed such a view is “incoherent and incompatible” as a constitutional matter. The declaration likely surprised few on MSNBC. Tribe has been an outspoken critic of Trump, whom he has denounced as a “terrorist,” and he has supported a wide array of criminal and constitutional claims against him. These views are popular as are Tribe’s increasingly personal diatribes, including vulgar attacks on Republican leaders and even a false attack on Attorney William Barr for his Catholic faith.

For the record, I have maintained that a president can grant himself a pardon. I held that position before Trump took office. I also believe a president can be indicted in office. The reason is the same: The Constitution prohibits neither a self-pardon nor a presidential indictment. This is not the first time that Tribe and I have disagreed. Two decades ago, we testified together at the impeachment hearing of President Clinton.

At that time, Tribe was far more restrictive in his legal and constitutional interpretations, declaring that lying under oath in the Clinton case would not be an impeachable offense. While a federal court and Democrats agreed that Clinton knowingly committed perjury, Tribe insisted that a president could commit perjury in certain circumstances and not be impeached. Thus, a president can commit a felony for which thousands have been incarcerated, including those prosecuted by his own administration, but he should not be removed from office for the same act.

I maintained that perjury is a “high crime and misdemeanor” regardless of its subject. Conversely, I testified in the Trump impeachment that the issue was far more difficult because of the absence of such a clear criminal act as perjury. While I testified that Trump could be impeached on two of six suggested articles — the two ultimately adopted by the House — I felt the Judiciary Committee had not created a record for such impeachment and was moving prematurely.

People of good faith can disagree on such issues, including that of self-pardons. The language itself is clear. 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 pardoned. The president is simply given the power to pardon anyone, for any federal crime. Many courts would likely dismiss challenges to such a pardon as simply being nonjusticiable.  Indeed, absent an actual federal prosecution raising the issue, it is hard to imagine a litigant to pass muster on standing for such a challenge under current rules.

Tribe insists the clarity and coherence comes in a later provision referring to how a president “shall take care that the laws be faithfully executed.” Tribe notes: “It doesn’t say ‘except the criminal laws.’ It doesn’t say ‘except when he chooses to violate the criminal laws.’” The problem, however, is that these provisions have an inherent conflict: All pardons, for anyone, would mean that a president is negating the effect of criminal law. That is the point of a pardon. This includes preemptive pardons before any actual charge like the one given Richard Nixon. While Tribe is saying self-pardons are notably bad, any pardon for anyone would run afoul of the duty to “take care that the laws be faithfully executed.” Moreover, the fact is that the pardon power is itself part of the laws of the United States.

Tribe insisted — as he has in the past — that the Framers would never have assumed such presidential power because even George III did not have the power to self-pardon. It is a curious argument since 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 a king in a system where he could not be charged with a crime. It is certainly true that Magna Carta sought to limit the powers of the King. However, it was focused on recognizing the rights of individuals and principles of due process. Kings continued to rule with sweeping personal privileges and immunities. Indeed, for much of history, kings were deposed in a lethal, not a legal, sense. For instance, Charles I faced a problem of revolution, not prosecution, and the ultimate loss of his head was not for want of a pardon power.

Tribe’s argument then moved from the historical to the sensational. He noted that Trump once said he could shoot people on Fifth Avenue and get away with it. A self-pardon, Tribe insisted, “would make that literally true.” No, it would make it neither literally nor even figuratively true. Murder remains a state offense which is not in any way limited by federal pardon power. Trump could pardon himself from any and all crimes — but only those covered in the federal criminal code. He still could be prosecuted under state law for that body left on Fifth Avenue.

The stronger argument against a presidential self-pardon is not the textual one raised by Tribe but, simply, that the Constitution should be read to include a principle against self-dealing. Yet presidents regularly engage in all forms of self-dealing, from nepotism to favoritism to cronyism, without a hint of constitutional difficulty. Bill Clinton not only appointed his 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.

This is why Trump can pardon himself, and why he should not do so. Just as I denounced Clinton for abusing the pardon powers, I believe such a step by Trump would be an even greater abuse. In other words, it would be as constitutional as it would be wrong.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

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