Pardons

The Pardon Power May Be Broad, But that Does Not Mean a Self-Pardon Would Be Legit

President Trump pardoned a turkey and an agent of Turkey. Will he give himself a lame duck pardon next?

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Last week, a lame-duck President pardoned a turkey, as is traditional for the Thanksgiving holiday, and then pardoned a former agent of Turkey, which is not. Could the most untraditional of pardons—a self-pardon—be next? If so, then what?

Article II, Section 2 of the Constitution provides that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power, the pardon power, is among the broadest and least constrained of presidential powers. It has been described as "plenary," and faces no real limits other than those indicated in the text: It only applies to federal crimes ("offenses against the United States") and may not be used to overturn an impeachment conviction. Further, pardons must be for acts already committed–that is, the "offense" must have occurred–but it need not have been investigated or previously disclosed, let alone charged. (For those interested, here's a good CRS report on the pardon power.)

The President may offer a pardon to whomever the President wants, and for whatever reason. This is one reason the inclusion of a pardon power was controversial at the founding, and why some Anti-Federalists, such as George Mason, were upset about it (and why some folks, like my co-blogger Keith Whittington have urged its reform). Fortunately, throughout the nation's history the pardon power is relatively rarely used to excuse corruption or protect a President's cronies. Those few instances–such as President Clinton's pardon of Marc Rich–are controversial precisely because they have been the exception, rather than the rule.

Some have urged Congress to enact legislation to curb the pardon power, but I doubt such legislation would be constitutional. The pardon power is the President's alone, and Congress lacks the power to constrain it. Congress might have the authority to require federal agencies that assist with the administration and execution of pardons and clemency to disclose information, but it is unlikely such legislative oversight could reach the President himself. As the Supreme Court made clear in Trump v. Mazars, Congress does not have free-standing authority to investigate the President for potential wrong-doing, and in the absence of any power to enact substantive legislation concerning the use of the pardon power, it is not clear what legitimate constitutional purpose legislative oversight or mandated disclosure concerning the President's use of the pardon power would serve.

President Trump has (thus far) been particularly stingy in his issuance of pardons. He has also been particularly self-interested, granting pardons and commutations to his political allies. Thus the pardon of Michael Flynn may have departed from historical practice, but it was not much of a surprise. Recall that President Bush did not pardon Scooter Libby (though Trump did). Some commentators have tried to argue that self-serving pardons of presidential allies and cronies are somehow constitutionally suspect, but I do not think these claims hold water. Dicta in lower court opinions noting the potential for constitutional constraints on the pardon power's use concerned conditions placed on offers of clemency, and should not be taken to signify a broader anti-corruption limit on how the pardon power may be used or abused.

Given the number of investigations into Trump's financial and other dealings, there is widespread speculation that the President might try to pardon himself. But can he do that? He thinks so. Most academic commentators and (more importantly) the Department of Justice disagree. A 1974 Office of Legal Counsel memorandum concluded that self-pardons were not within the pardon power because it is inappropriate for the President to be a judge in his own case. The memo is thin, but represents the official position of the Department of Justice. In my view, Brian Kalt makes a more persuasive case against the legitimacy of self-pardons (and at greater length here). Tim Sandefur offers a contrary view, but I am not convinced by it. As I see it, the language, history, usage and understanding of the nature of a pardon all point in the opposite direction. [For more, see this "smorgasbord of views on self-pardoning" collected by Jack Goldsmith.]

While I believe a self-pardon would not actually be a pardon and would be invalid, my opinion is unlikely to hold sway at 1600 Pennsylvania Avenue. So what happens if the President were to try and issue a self-pardon? It is an interesting question.

Recall that the power only extends to federal crimes, so a self-pardon would not have any effect on potential state proceedings against Donald Trump once he leaves office. If Manhattan DA Cyrus Vance is inclined to pursue charges against Trump (or any of his relatives or associates, for that matter), a federal pardon will not stand in the way.

As for federal crimes, note that the initial opportunity to weight the self-pardon's validity would fall to the Department of Justice in weighing whether to bring federal criminal charges in the first place. As already noted, DOJ does not believe self-pardons are valid, and it is inconceivable that the Biden Administration would revise this view. So if the Justice Department were to conclude that Donald Trump committed federal offenses worthy of prosecution, the existence of an attempted "self-pardon" would not stand in the way of an indictment.

No doubt any federal indictment would be met with an effort to dismiss the charges on the grounds that Trump was pardoned. Trump's attorneys would no doubt raise this claim at the earliest opportunity. I suspect this claim would be met with skepticism, however, as it would contradict the longstanding and well-established view of the Justice Department. While OLC opinions are not binding on federal courts, they are taken seriously, and particularly so where (as here) they run counter the executive branch's interests. OLC opinions typically embrace robust conceptions of executive power. Thus an OLC opinion counseling restraint is more notable, and is likely to get extra consideration as a result. [As an aside, it is still possible that OLC could reverse its position between now and January 20. Were that to occur, I suspect any resulting memo would be recognized as a last ditch effort to shore up the President's position, and not a neutral, dispassionate analysis worthy of judicial respect, but that could depend on what any such memo says.]

This is a long way of saying that if Trump tries to pardon himself, he could have a hard time making the pardon stick. It is certainly possible the Justice Department may have no interest in pursuing the former President, whether because it concludes there are no offenses worth pursuing, a sense of political comity, or a prudential judgment that state courts should get the first shot. But should there be such a prosecution, I doubt a self-pardon will offer ex-President Trump much protection in federal court.

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  1. I do not think Trump is going to pardon himself because Trump does not think he did anything wrong that would warrant such a pardon.

    1. I am willing to bet that Trump will try to pardon himself.

      I would, if I were him.

      1. You think that because you’re convinced he’s committed crimes. Does he agree? Your conviction isn’t evidence that he does.

        1. True. And your conviction isn’t evidence that he didn’t.

          I guess we’ll know by noon om Jan. 20 whether he pardons himself or not.

          I’ll make the following predictions:

          1. He pardons himself with some story about how he did nothing wrong, but the deep state is out to get him.

          2. You and JTD will buy the story.

          1. And I think he won’t pardon himself, because he doesn’t want to drop out of politics just yet, and doing that would be a (political) career ender.

            But if he did pardon himself, I’d take that as evidence he really was guilty of something.

            1. “And I think he won’t pardon himself, because he doesn’t want to drop out of politics just yet, and doing that would be a (political) career ender.”

              Trump has done so many “political career ender” things and still has high approval ratings in certain demographics, so I find it hard to believe attempting to pardon himself would ever be a deal breaker. It would be like the 4 bankruptcies or paying tiny amounts of federal taxes: he’d be praised for being so smart and using the system to protect himself.

            2. And I think he won’t pardon himself, because he doesn’t want to drop out of politics just yet, and doing that would be a (political) career ender.

              Trump all but committed treason and it didn’t hurt him with the brainwashed cult members who support him, so there’s no reason such a pardon would do anything worse.

          2. I don’t think he’ll pardon himself, for 2 reasons

            1). NBC reports: “President-elect Joe Biden has privately told advisers that he doesn’t want his presidency to be consumed by investigations of his predecessor, according to five people familiar with the discussions, despite pressure from some Democrats who want inquiries into President Donald Trump, his policies and members of his administration.”

            2. It’s more likely to be a vindictive state AG as in NY that will go after him than Federal prosecutors.

            The reason Biden won’t go after him is it might open him, or more likely his family to tit for tat investigations either by the House, when the GOP takes control in 2 years, or the DOJ if the GOP wins the Whitehouse in 4 years.

            1. The reason Biden won’t go after him is it might open him, or more likely his family to tit for tat investigations either by the House, when the GOP takes control in 2 years, or the DOJ if the GOP wins the Whitehouse in 4 years.

              Biden is not so naive as to not know that the GOP will undertake such investigations whenever and wherever they have power to do so, regardless of what he does. What was it with Benghazi? 25 or 30 investigations all of which concluded that there was no wrongdoing but let’s investigate again?

              1. Well, we had an impeachment over nothing…

      2. Given these subpoenas were for the purpose of leaking to embarrass him rather than their facetious cover stories, I can’t disagree with that.

        Still, it would likely be the first and last time a president did that, as it would probably prompt a constitutional amendment.

        1. If a President did that, his party would immediately block any attempt of amending the constitution to prevent it in the future.

    2. Why would he pardon himself only if he thinks he did something wrong? A pardon is useful as long as *someone else* thinks he did something wrong. From his perspective, what’s the downside?

      1. The downside is that it could be publicly perceived and/or spun as a confession of guilt. Trump would be balancing that against the risk of actually being convicted if he were even prosecuted in the first place. If he knows he didn’t break the law, he’d view that risk as quite low.

        So he only pardons himself if he knows he’s guilty, and is just trying to avoid spending his last few years in prison.

        1. You’ve got to be kidding. He’d just say it’s necessary to protect him from THE GREATEST WITCH HUNT EVER or the like and those who like him will agree.

          I mean, here’s a rare instance where I’d actually think he would have a point in that pardons were meant in part to to combat not only overzealous prosecutions but also outright injustices.

          1. In the case of somebody like Flynn, the state has enough resources to bankrupt the target with litigation expenses. So overzealous prosecution and extorting guilty pleas is a real issue. That’s what happened to Flynn: They bankrupted him with legal expenses, and then threatened to go after his family, and he entered a plea deal to protect his family. Then Sullivan had to get all vengeful on him, and attempted to exceed the terms the DOJ had offered in order to get the plea deal, so he tried to back out. Then evidence emerged that made it impossible for the DOJ to pretend that it hadn’t been a political prosecution, to they tried to drop it.

            The pardon was because Sullivan wouldn’t permit them to drop it, he was on a vendetta against Flynn for some reason.

            Trump has the resources to pay for a competent legal defense without hurting, so he has nothing in particular to fear of a prosecution where he knows he’s innocent. He only needs a pardon if he thinks he could be convicted.

            1. “In the case of somebody like Flynn, the state has enough resources to bankrupt the target with litigation expenses.”

              Correction, in the nearly *everyone* the state has enough resources to bankrupt the target with litigation expenses. This is apparent all the time, the fact that Trump’s incredibly meager use of his clemency power was tapped with Flynn, and other’s of his political supporters, itself stinks. Draining the swamp, indeed.

              “Then evidence emerged that made it impossible for the DOJ to pretend that it hadn’t been a political prosecution”

              Oh, good grief, I guess you could interpret the special treatment extended to Flynn this way, but regardless, going to your original point, if Trump can convince his supporters such as yourself that he was just using the power to right a political wrong here then of course he could do the same with himself.

              1. No, because HE can’t be bankrupted by legal expenses. Flynn was.

                1. That’s true. He’s going to be bankrupt (again) long before he makes it to court.

    3. You think totalitarians will let that stand in the way of indicting him?

    4. Regardless the left will not stop the persecution of President Trump, his family and others in his orbit who supported him. He could always resign the day before the end of his term in 2024 and VP Pence could pardon him. The left is pure evil on this.

  2. Flynn wasn’t convicted of being a Turkish agent. But at least it helps you with making a pun.

    “President Bush did not pardon Scooter Libby (though Trump did).”

    Bush commuted Libby’s sentence. Now then, the Constitution mentions only pardons and reprieves, saying nothing about commutations. So for a commutation to be valid, it has to be either a pardon or a reprieve.

    My Internet searches gave different answers, but my best understanding is that a reprieve postpones a sentence – eg, delaying a death sentence (or I suppose delaying the start of a prison sentence or payment of a fine) – but it’s not the same as a commutation, because the sentence still ends up being carried out.

    So the other possibility is that a commutation is a subcategory of pardon – a partial pardon.

    (I’ll think about self-pardons when I see Pres. Trump attempt it.)

    1. “Convicted of…”

      He was an agent of Turkey in the informal sense by his own admission, so that’s adequate for the pun. Whether he was an agent by the legal definition such that he needed to register as an agent of a foreign power is another matter.

      1. I’m not saying Flynn was innocent of all other crimes besides the one he got pardoned for. I have no idea.

        If I absolutely had to guess, I’d say that there are probably a lot of foreign agents (in whatever sense) in Washington who avoided legal entanglements by the simple expedient by not being connected to President Trump.

        1. Sure, look at Manafort getting in trouble, and Podesta walking, in the exact same case, as an example of that.

          1. Are you talking about Tony Podesta? His investigation was a rather direct result of his interaction with…Manafort (and his convictions were, iirc, on money laundering type stuff related to his foreign agent work).

            1. Yes, I’m talking about Tony Podesta. I guess “a rather direct result of his interaction with Manfort” is one way of saying they were both in on the unregistered foreign agent crime Manafort got prosecuted for, and Podesta… didn’t.

              Yes, the actual convictions didn’t involve that, doesn’t change the fact that they were both unregistered foreign agents, and only Manafort got charged.

              1. “and only Manafort got charged.”

                For. Several. Other. Crimes. Do you have evidence Podesta also should have been charged for those?

                1. No, I quite explicitly was restricting this to the unregistered foreign agent charge.

                  “If I absolutely had to guess, I’d say that there are probably a lot of foreign agents (in whatever sense) in Washington who avoided legal entanglements by the simple expedient by not being connected to President Trump.”

                  I was giving Podesta as an example of that.

    2. Cal Cetín : Flynn wasn’t convicted of being a Turkish agent.

      Flynn admitted being an unregistered agent for Turkey as part of his plea deal with special counsel Robert Mueller. In a filing to the judge overseeing Flynn’s case, the Justice Department said the pardon also covers the unregistered lobbying for Turkey as well as “all possible offenses arising out of facts and circumstances” probed by grand juries in D.C. and Eastern Virginia.

      Given Flynn broke a lot of laws, that’s a pretty sweet deal. It’s a real Barr-Special, cooked up for only the most criminal of Trump’s associates. Hell, it probably even covers Flynn’s flirtation with kidnapping. You remember : After the 2016 election, he attended two meetings with Turkish officials to discuss kidnapping a dissident living in the U.S. & smuggling him out of the country. The second meeting in December was to discuss Flynn’s fee.

      Fun fact : Flynn had already been named National Security Advisor when he haggled over his price for “transporting Mr. Gulen by private jet to the Turkish prison island of Imrali.” The final agreed-on number was 15 million. Just a little money on the side, government salaries being what they are.

      So yeah, Trump pardoned an agent of turkey. Sleazy contemptible piece of grifter trash being another way of describing Michael Flynn. Maybe we can come up with a pun using that.

      1. If I missed the kidnapping, I am certainly very sorry – I had assumed that the media would highlight his most atrocious acts. If was guilty of a kidnap plot, then his plea deal was too lenient because it didn’t require him to admit his worst crime.

        So let me get up to speed on that particular allegation, hold on…

        OK, Wikipedia seems to think the matter is in dispute. Reasonable doubt? Or maybe Wikipedia is simply hampered by its well-known bias in favor of Trump cronies.

        There was an extradition request for the guy, but the U. S. never thought there was enough evidence. But we have the word of a former CIA director that an “extraordinary rendition” (fancy language for kidnapping) was discussed in Flynn’s presence. I can’t say that didn’t happen, and if it did let me say I welcome the CIA’s belated conversion to opposing extraordinary renditions. I have no idea why Mueller didn’t insist on an attempted kidnapping charge…didn’t he think he had a reliable witness?

        1. While you’re catching-up on Flynn aborted sideline as a kidnapper, maybe you can research all the other whoring he did for the Erdoğan regime. The Gulen Caper wasn’t the only service he provided the Turkish govern during his involvement with Trump’s campaign, transition, and then cabinet as NSA-designate. Whatever you say against our skinny little hustler, you can’t deny his skills at multitasking.

          After all, Turkey wasn’t the only foreign government Flynn serviced. There was also the help he provided the Saudis, as they sought to evade legal restrictions on acquiring sensitive nuclear technology. The government of Russia was yet another employer. Less than a year before he was Trump’s pick for the most sensitive national security position in the government, Flynn had pocketed 40K from the Kremlin for two days “work” – the main chore being Putin’s pet American general – siting by Vladimir’s side at a prestigious banquet. But this can get to be a bit confusing.

          Such as this : When NSA-designate Flynn calls Ambassador Kislyak five separate times on the day Obama announces sanctions against Russia, who was Flynn working for? Theoretically, President-Elect Trump, but Flynn would tell multiple lies to multiple Trump officials about the call in under two weeks of the day they occurred. Then he would lie to the Vice President about the call. Then he would lie to the FBI about the calls. Lets consider the question unanswered.

          But what a quadrant for the FBI, huh? Here’s a guy who’s sold himself to unsavory foreign governments with all the zeal of a back-alley hooker. You’re not sure to what degree, because its clear from the last minute deluge of retroactive registrations that’s he’s flouted the laws requiring him to register as a foreign agent and report payouts from other governments. Not until Mueller will it be established just how frequently he’s broken the law, but it’s clear enough then that he has. And now Flynn is talking to one of his old employers and then lying about it to every Trump official he reports to!

          Glad I’m not an FBI agent, because that would have been a puzzle to work out…..

          1. Sleazy stuff…though I doubt he’s the only American who’s been working as a foreign agent for bad regimes. But most of them seem to get winked at by…what should we call it? The military/industrial complex, the Deep State, the revolving door…

            Good thing the incoming administration will put a stop to all that! /sarc

            1. I doubt he’s the only American who’s been working as a foreign agent for bad regimes.

              Me too. But he seems to be the only one who was National Security Advisor at the same time.

              And your uninformed predictions of what Biden might do are irrelevant to the Flynn case. Predictive whatabouttery is not a strong argument.

      2. “Flynn admitted being an unregistered agent for Turkey as part of his plea deal with special counsel Robert Mueller.”

        I think you missed the whole fuss where he claimed he was coerced into fraudulently pleading guilty to various crimes by Mueller threatening his family.

        Or just discounted it, I suppose, assuming that he was such an upright man that he’d never lie in a plea deal even if somebody credibly threatened to bankrupt his whole family.

        1. Uh, yeah Brett : He was indeed “coerced” because of the threat of charges against his son. Wanna know why? Because the sleazy piece of shit had his boy breaking the law right beside him. It’s not a very difficult legal requirement to follow : If you’re receiving a fire-hose-flow of cash from multiple foreign governments you have to (a) Register as a foreign agent, and (b) Report those payments. Father and son both refused to do that.

          It’s strange how the Cult has incorporated the son’s lawbreaking as evidence of his grifter father’s sainthood. But I guess that’s the kind of thing Cults do…..

          1. I have a simple rule, too: If you think you can prove the charges, hold the trial. Don’t coerce the defendant into a plea deal.

            1. It’s up to the defendant to have the trial ultimately.

              1. Yeah, and it’s up to the extortion victim whether to pay, too. Heck, it’s up to you whether to hand your purse over to a mugger, isn’t it?

                Almost all trials in the US end with plea deals, because defendants are extorted into giving up their right to a jury trial by threatening them with worse charges if they don’t.

                I am of the opinion that plea bargaining should be limited to minor offenses like traffic tickets, the state should be forced to prove their case wherever a serious offense is alleged.

                And in the case of an acquittal, the defendant should be made whole.

            2. Hahahaha. You can have whatever rule you want, but in this case, it’s completely out of touch with the current operation of our criminal justice system (>97% of federal convictions are the result of plea deals). In most cases that’s due to the strength of the government’s case, not its weakness.

            3. Actually Glenn Reynolds had a good proposal, if a defender passes on a plea deal, then the defense can disclose to the jury the offered plea.

              That would negate some of the punitive charges that prosecutors wield to coerce a guilty plea in many cases.

      3. “It’s a real Barr-Special, cooked up for only the most criminal of Trump’s associates”

        The way to drain the swamp is to provide such special deals for your cronies, of course!

  3. For years now, I keep hearing Really Smart People talk about all the supposed crimes that Trump has potentially committed. Of course, they never offer anything other than the usual pablum of “taxes” and other murky smears. Usually it’s reduced down to just vague suppositions and an almost Freudian wish-fulfillment fantasy. The “Trump Self Pardon” falls into this category. File it under the asinine wet dream of Seal Team Six parachuting into the White House to “drag Trump out” on January 20th.

    Truly, Orange Man Bad occupies a lot of mental and psychic real estate, on both the Left and the Right, and lots of places in between.

    1. You seem remarkably uniformed, Michael W. Towns, even for a bigoted, obsolete, poorly educated clinger.

      Are you excited about prospects for Trump’s inauguration next month? I expect a dumbass attempt to overturn the election to reach the Supreme Court tomorrow, or perhaps the next day.

      1. Thanks once again, Art, for proving the point. Don’t you ever get tired of being a caricature?

      2. Oh I’m sorry, Rev. Was your posting of a New York Times link somehow supposed to make a point? This is the same media rag that spent four years telling us that Trump was a Russian agent. Am I supposed to take anything the New York Times says seriously?

        1. No. You are supposed to spend the remainder of your life — until replacement — as a disaffected, inconsequential, bigoted clinger.

    2. the usual pablum of “taxes”

      Well, who knows? Trump is not famous for his honesty, especially in financial matters.

      I’d say tax fraud and other financial crimes are the likeliest federal offenses with which he might be charged. Among other things, these potentially have the clearest evidence of wrongdoing.

      1. Got anything other than wishful thinking to back that up?

        1. It’s almost like Trumpers haven’t paid ANY attention over the last four years.

          I’d say you people can’t truly be as ignorant as you demonstrate, but you consistently surprise me. Did you forget that he’s unindicted co-conspirator #1? Did you forget that his lawyer stated under Oath that Trump inflates his assets when seeking loans, and undervalues his assets when paying taxes? Do you think it’s a legitimate privacy issue that he’s fought for FOUR YEARS to hide his taxes from anyone and everyone, including attempting to claim that someone seeking evidence in a criminal case isn’t allowed to see his tax returns?

          Because that’s what innocent people do – they run to SCOTUS trying to literally claim absolute immunity from criminal investigations.

          Don’t you get tired of being a member of the cult of fools?

          1. We paid attention, at least, to the fact that his taxes are regularly audited.

            1. A tax audit, as I have endlessly pointed out, is not remotely the same thing as a tax fraud investigation.

              Further, it obviously doesn’t cover things like making false statements to banks and so on.

              Are you under the delusion that Donald Trump is an honest man?

      2. I’d say tax fraud and other financial crimes are the likeliest federal offenses with which he might be charged. Among other things, these potentially have the clearest evidence of wrongdoing.

        Point if order, the powerful are not supposed to be able to use the government’s power of investigation against political opponents. Of course the king could, and would, ruffle at whim through their papers looking for something to hurt them with. That’s why we require warrants.

        Would any of this happened but for him being president? And an irritating one at that? No?

        You’re welcome.

        1. Point if order, the powerful are not supposed to be able to use the government’s power of investigation against political opponents.

          Point of order: https://www.youtube.com/watch?v=DQCiIIeN0Bw

        2. Point of order.

          Being President doesn’t mean you don’t have to pay your taxes.

          Will he have a tax problem if he has paid his taxes honestly? No.

          Is there evidence he has not been 100% honest in tax and financial matters? Yes. Tons of it. If you want to dismiss the NYT reports as “fake news” or with some other BS, go ahead, but it won’t change the facts.

          You’re welcome.

          1. “Is there evidence he has not been 100% honest in tax and financial matters?”

            You can say the same thing about just about every American. Especially those making more than a million a year.

            1. So what?

              Murderers get away sometimes too.

    3. They’ll pick something that helps them accomplish their political goals.

      Probably some paperwork judgement-call offense you have to be an accredited expert to understand. That way they can claim Trump is guilty and only one in ten thousand people in the US will truly understand how even charging Trump with it is an abuse of authority.

  4. I think Biden’s strategy is clear. No federal prosecutions of Trump, as that would look vindictive and invite retaliation by the next Republican administration. As for State prosecutions, Biden can just shrug his shoulders and say, not my doing, not my authority, not my problem.
    Which given the current NY AG, means Trump will at least face state investigation, and likely indictments.

    1. If Trump does not pardon himself, then I think Biden should not pursue federal charges, and publicly state that the reasons he was not pursuing was due to (1) Continuing a tradition of not prosecuting ex presidents, and (2) an effort to unify the country (or, more specifically, to try and not worsen enmity between the two sides).

      BUT . . . if Trump were to pardon himself, then I think Biden MUST pursue federal charges. This is an issue where the entire country, going forward would benefit from getting clarity from the Sup. Ct re whether or not a president actually does have this power. [On the other hand; maybe the lack of clarity is currently acting as a guardrail . . . who the hell knows?!?]

      1. No, if Trump committed crimes and they can prove it, by all means charge him, unless of course they’re the sorts of offenses which would have gotten a diversion or a civil handling of the case for Joe Average.

        The tradition of not prosecuting ex-presidents (and certain Presidential candidates) is a pretty sweet deal for Presidents (and candidates) who get away with stuff which would have put Joe Average in the slammer.

        But if Biden holds to this “tradition” of special treatment of Presidents (and candidates), it will be because he’s aware that Democratic Presidents (and candidates) have committed crimes, and he would be worried about the fate of future Democratic Presidents (and candidates).

        1. See above in the discussion of kidnapp – I mean extraordinary rendition.

          1. You mean the discussion of where they asked him to do it, and he didn’t?

  5. The OLC opinion is meaningless and not even slightly convincing. There is nothing in the Constitution that constrains the ability of the President to sit in judgement of himself, nor for that matter is the granting of a pardon anything like sitting as a judge. In any event, acting as a judge of one’s self is merely a special case of the more general rule that no one may sit as a judge in a matter in which they have a conflict of interest. And we don’t doubt that the President may be pardon his cronies, friends and loved ones, so there is no basis left for doubting he can pardon himself.

    It’s just a bug in the Constitution, just like failing to fix the number of Supreme Court justices is a bug. And every bug is likely to be exploited when something without integrity discovers it.

    1. In a just world, Trump will be bankrupted and imprisoned within a few years, ideally consequent to state prosecutions. We can address the Constitutional issue about self-pardons independently.

      1. “Something without integrity”. Then Art shows up with more pablum. Coincidence?

      2. “In a just world,”

        Isn’t that a corrollary of backwards, religious thinking? Are you “clinging” to outdated notions?

      3. In a just world, much of the leadership of both parties would be bankrupted and imprisoned. Some have been wrecking thks country for decades, slinging trillions in dollars and hundreds of billions in regulatory burden threats in exchange for cushy jobs for relatives, who statistically turn out to be geniuses at the stock market.

        1. Can’t argue with that.

          I seriously hoped that, when they went after him, Trump would pull a “Samson in the temple”, and take the whole rotten edifice down with him. Sadly, he didn’t, perhaps because the prospect of going down with them wasn’t very appetizing.

    2. The OLC opinion is meaningless and not even slightly convincing.

      It’s worth noting, just in general, that this is always true of OLC opinions. They are just opinions by a lawyer. That’s it. They bind the executive branch, but even that is just a matter of presidential discretion- if the President decided to hire a private lawyer to issue opinions that bound the executive branch, that could be done too. Or the President could just choose an OLC who repudiated all previous OLC opinions.

      And outside the functionaries of the executive branch, they are no better than any other lawyer’s opinion letter. They stand or fall on the quality of their reasoning. A wrong OLC opinion is a piece of toilet paper.

    3. It’s nice that you think so. Your position is unsupported by two centuries of American jurisprudence and values.

      It’s a weak argument to try and link the President’s ability to pardon others, with an innate ability to commit any crimes he wants and then just pardon himself.

      We have a President – not a King.

      1. The actual argument is that the Constitution says it’s a power to “pardon”, not “pardon others”. I personally find it pretty convincing, as I care what the Constitution actually says.

        1. So it’s fine for the President to sell national security secrets to whoever for a couple of billion, and then pardon himself?

          1. Look, whether it’s “fine” has nothing to do with whether it’s constitutional. The Constitution is what it is, even when the implications aren’t good.

        2. “The actual argument is that the Constitution says it’s a power to “pardon”, not “pardon others”.”

          The actual wording of the constitution: “… he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

          The operative word is “grant”. You can’t grant something to yourself, at least in the plain English as understood at the time the constitution was written.

          So, no, the president can’t “grant himself a pardon.”

          That said, the smart way to bet is that he tries and no court rules on the matter since the Biden DOJ won’t bring federal charges.

      2. We have a President – not a King.

        Could have fooled me. Partisanship aside, Americans seem to treat their Presidents with a whole lot more deference than anyone else does their royalty.

        1. Agreed. There are plenty of cases of Governors, Mayors, Senators, Representatives, Judges, etc. who have experienced indictment, conviction, and even jail.

          What’s so special about the President?

  6. Given the language in the impeachment section of the Constitution that says explicitly that the President shall still be prosecutable after conviction and removal from office following impeachment it seems blatantly obvious that the Constitution does not allow self pardon, else that language would useless.

    So if the feds do try to indict Trump after a self pardon and it goes to the Supreme Court it would seem both the textualists and the originalist would rule that Trump cannot self pardon. Of course this would require some Justices to stay true to principles, which is always a question with this set of Justices.

    1. Given the language in the impeachment section of the Constitution that says explicitly that the President shall still be prosecutable after conviction and removal from office following impeachment it seems blatantly obvious that the Constitution does not allow self pardon, else that language would useless.

      That makes zero sense, because no President has self pardoned. There are checks on the self pardon power, in the sense that history may view it badly and Presidents care about history. A self pardon could also harm the President’s party.

    2. He can’t pardon an impeachment. And an impeachment is not a criminal proceeding, so the founders clarified that the impeachment and removal does not preclude further prosecution. Pointing to the impeachment section therefore has no bearing on the discussion.

      1. No President has self pardoned because other than Nixon it seems no President has needed to self pardon because they have not committed any crimes (current resident of the White House excluded of course, which is not to say he has committed crimes).

        As for the impeachment section being relevant, of course it is. The Founders went out of their way to state the President was still subject to criminal prosecution regardless of impeachment and conviction, which as stated above is not a criminal prosecution, meaning he could not self pardon.

        Really folks, this is not that hard.

  7. The Plame/Libby affair exemplifies how mixed up and tribal our politics has become. So Trump won the Republican nomination in 2016 by saying Bush “lied” us into Iraq and the war was a “dumb war”, but Republicans still hate people like Valerie Plame and Joe Wilson and Jim Webb for taking those positions in 2003!?! Ironically Jim Webb apparently voted for Trump and Plame lost a Democratic primary for safe Democratic seat in the House a few months ago.

    Btw, impeachment AND removal is the remedy for a pardon that amounts to an abuse of power…which is why presidents generally exercise the pardon power when impeachment is no longer a threat.

  8. As I see it, the language, history, usage and understanding of the nature of a pardon all point in the opposite direction.

    This is a pure ipse dixit.

    First of all, the language supports self-pardons. It admits of no limit of who can be pardoned. The only limitations are it has to be a federal offense, and it doesn’t apply to an impeachment. If the framers intended to impose a limitation on self-pardons, they would have added it. Indeed, the inclusion of impeachment is strong evidence that self pardons are included, because one of the people who can specifically be impeached in the Constitution is the President.

    Second, there’s literally no history or usage because nobody has done it, and no understanding because nobody wrote about it.

    Third, saying there can’t be a self pardon just raises a bunch of other issues. Can the President pardon the Vice President? Can the President resign and the Vice President pardon the President? If not, does that apply to every person in the line of succession, or just the Vice President?

    When the rubber meets the road, the pardon power has to include the power to self pardon. It pisses people off, but the Constitution doesn’t prohibit everything that you might think is wrong.

    1. “This is a pure ipse dixit.”

      Is there such as thing as impure ipse dixit?

      (For the record I agree with you. Just felt inspired to nit-pick.)

    2. I don’t see how the language supports self-pardons. You might want to read

      https://www.theatlantic.com/ideas/archive/2020/11/one-word-bars-trump-pardoning-himself/617170/

      TLDR: The constitution says the president may “grant” a pardon. A grant is something that you can only bestow on others.

      1. That’s a very thin reed. “Grant” is simply the word that is used for issuing a pardon. Second, there are all sorts of ways in the law that things CAN be granted to yourself, especially when a person acts in different capacities. For instance, a sole-shareholder business can grant something to the shareholder in her individual capacity; a person can grant something to their own corporation or LLC, etc. A person can grant something to a trust he controls.

        If we ARE going to go into the weeds on “grant” (which we shouldn’t- as I said, it’s just the word associated with issuing pardons and reprieves), the President in his official capacity can grant the person occupying the office of President, in his personal capacity, a pardon. That satisfies any definition of “grant” you want to use.

        Again, this is really just a matter of “the Constitution doesn’t fix every problem you want it to”. Presidents want to be popular, and self-pardons may be seen as unpopular acts. And at any rate, nothing stops a President from pardoning his Veep, resigning on January 19, and having the Veep pardon the President. Which means you can’t stop a self-pardon anyway if a President is determined to do it.

  9. There have been self pardons by governors and by at least one mayor. https://www.newsweek.com/trump-granting-himself-pardon-governors-641150

    There does not seem to be any precedent for invalidating such a self pardon.

    This strongly suggests that self pardons are allowed although it is not dispositive.

  10. I wonder if it would make any sense for Trump to try a self-pardon. Why wouldn’t he simply resign at some point before the inauguration — after pardoning his family and friends, of course — and then let President Pence pardon him? Assuming Pence intends to run in 2024, it would endear him to Trump’s base. Of course Trump could still face state charges and civil suits, but it would be one less thing to worry about.

    1. That seems like it would work. I’m sure it’s been (or is being) considered. But it seems to admit guilt and therefore might make state prosection more likely.

      1. It wouldn’t be construed as an admission of guilt by his supporters (and who else does he care about?) if Pence’s pardon statement was along the lines of Ford’s when he pardoned Nixon:

        “It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

        “Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.”

        1. The “pardon is an admission of guilt” crap has to go. If someone offered you a pardon, immunizing you from any federal prosecution, and you hadn’t done anything wrong, would you take it? I would.

          1. I agree wholeheartedly.

            I would add here that the modern-day procedures involved in defending oneself from a serious charge are so lengthy and complex, and the cost of a defense in both time and money so great, that unless you are a retired multi-millionaire, the notion of not taking a pardon to defend yourself against a serious charge is insane.

            If “the process if the punishment,” as it often is, then you cannot read much into someone accepting a pardon to avoid the process.

    2. “Why wouldn’t he simply resign at some point before the inauguration”

      Probably because he doesn’t think he’s guilty, and it would amount to an admission of guilt.

  11. Who will stop Trump, and how? Specify the procedure.

    1. The OP does.

      1. Trump self-pardons.
      2. A Federal prosecutor prosecutes Trump.
      3. Trump seeks dismissal of the charges on the ground of pardon.
      4. Judge denies the motion.

      1. 5. Trump appeals to Supreme court.
        6. Supreme court overrules judge.

        1. You’re probably right. But that doesn’t change the fact that our friend DaivdBehar was asking a question that the original post already answered.

  12. “departed from historical practice”?! As in Susan McDougal? It’s possible that outright falsehoods of this nature are persuasive to the half-educated 20-somethings among whom Prof. Adler spends his time, but not to educated adults. That’s the problem with being a professor, it makes you intellectually flabby.

  13. The example of pardons “to excuse corruption or protect a President’s cronies” is … Marc Rich?

    Not Ford pardoning Nixon, not the elder Bush pardoning multiple Iran-Contra figures, not Scooter Libby? And no mention of Roger Stone (too soon, I guess)?

    1. I agree: The Marc Rich pardon wasn’t to excuse corruption. It WAS corruption; Clinton sold a pardon. Rich wasn’t a “crony”, he was a major donor.

      I also agree that Ford pardoning Nixon was a good example of excusing corruption.

  14. It’s really sad that this is what you people have turned into. I wish you luck on your return to rationality and eventually back to becomming someone of solid character.

    What makes someone go off the rails like this? Whatever it is, let me suggest no longer letting it occupy your mind and being vigilant to keep it out once it has gone.

    1. Buh Hunter

  15. Santa,
    All I want for Christmas is for Trump to pardon himself and his children.
    Sincerely,
    apedad

    Really, this most unconventional president absolutely has to do the most unconventional thing and that is to pardon himself (and his kids).

    He’s been giving the US (and really everybody) the big FUCK YOU his entire life and this would be the ultimate FU.

    DO IT DONNY!

  16. > Further, pardons must be for acts already committed–that is, the \
    > “offense” must have occurred–but it need not have been
    > investigated or previously disclosed, let alone charged.

    That’s interesting. Can a pardon be non specific? Not specifying what the “offense” was? Can it pardon an unspecified plurality of offenses? Can it be a “get out of jail free” card to be invoked in the future if needed?

    The language in the Constitution does little to limit the meaning of pardon. What does common law say about pardons?

    1. Conveniently, the prominent English legal commentator (Financial Times, etc) David Allen Green blogged about that just a few days ago: https://davidallengreen.com/2020/11/pardons-should-be-how-mercy-complements-justice-but-what-happens-when-pardons-undermine-justice/

      (Unsurprisingly perhaps, he’s not a fan of vague, general pardons.)

  17. I think it is likely he will pardon many of his associates. Since those pardons will remove 5th Amendment barriers to those associates testifying against Trump, they increase the pressure on him to pardon himself too.

  18. Pardon for what, exactly? Governing? It’ll be disappointing if other authors on this blog follow Ilya’s lead with blatantly partisan click-baity articles.

    1. I agree that any prosecution of acts of governance is fraught with Constitutional danger. Mueller and his team had an expansive view of “obstruction” that included anything within the presidential power they viewed as done with “corrupt intent.” The notion that a president can be prosecuted for using the pardon power, IMO, flies in the face of the Constitutional order.

      That said, being president is not a free pass to criminality. The Constitution explicitly mentions bribery. I don’t think you would say that a president who takes a bribe should not be both impeached and then prosecuted.

      More to the point, any prosecution of Trump should stay far away from what he did as president. But if, for example, he cheated on his taxes, then that is fair game. (Which is what I think that the NY AG will focus on.)

      1. I think I mainly agree with you here – implementing policy, i.e. governing should not be criminalized, no matter how strongly you might disagree with the policy. And I definitely agree that being president is not a free pass to criminality.

        That said, there are some acts that would fall under “what he did as president” that are sufficiently criminal as to justify prosecution. As a hypothetical, suppose the president (not necessarily this one) told one of his underlings to kill a political rival, promising a pardon if caught. Suppose further that the act was carried out, the perpetrator was caught, that there’s clear documentary evidence the president ordered the killing and offered a pardon, and that the Senate (again) refuses to hear any evidence about the matter so the president remains in office.

        Is this president still non-indictable while in office, and should the new DOJ after he leaves office decline to prosecute because it’s “what he did as president” ?

      2. “But if, for example, he cheated on his taxes, then that is fair game. (Which is what I think that the NY AG will focus on.)”

        The NY AG was on a political fishing expedition solely for the purposes of finding bullet-points for Biden’s campaign. This will quickly disappear now that the election is in the past.

        And a politically motivated legal action post election is one heck of a good way to stoke the partisan animosity up to 11. that won’t end well for anyone.

    2. And the implied premise of the article is that they plan to put Trump in jail.

      Picking out a guy you hate, deciding to punish him, and then looking for a crime to justify the punishment is some real Marxist dictator-type thinking.

  19. A legislative attempt to curb the pardon power of the president is a non-starter.

    No rational president would sign such a bill, so it would need enough support for a veto override or a moron in the White House.

    1. And it would very likely be unconstitutional.

      What happens when the president pardons someone anyway, and then that person is prosecuted and moves to dismiss? I would bet a lot of money that the court dismisses the case.

      1. Sounds right.

        What’s needed is an Amendment:

        The President can’t pardon himself, or immediate family members. Nor can he pardon anyone for crimes committed on his behalf, either personally or in his office as President.

        1. That gets you into all sorts of weeds about what “on his behalf” means. For example, can the President pardon someone for war crimes? (Like Trump did.)

  20. #Resistance fan fiction always has the Stalinist overtone of, “Show me the man, I’ll find you the crime.” One recalls the Washington Post headline “The Campaign to Impeach Trump Has Begun”, posted at 12:19 on January 20, 2017, at which time Trump had been president for precisely nineteen minutes. Will Trump attempt to pardon himself? For what? I don’t know, but we’ll find something.

    As for the overriding question, though there is no English precedent, as the King, of course, would have no need to pardon himself, I believe a president could pardon himself, as the text has no such limitation, and I find the idea that the President can pardon anyone or everyone (except himself) in the world for every federal crime ever committed an untenable position. Of course, the question is an open one.

    1. The suggestion above to look at governors pardoning themselves seems sensible.

  21. The 1974 OGC opinion, described as “thin” by Prof Adler, would more properly be described as “vanishing.” The only argument advanced is the principle that you can’t be a judge in your own case. Which is odd, since this principle is not mentioned anywhere in the Constitution, and where that silent principle seems to be honored, there is an explicit rule (such as the Chief Justice rather than the VP presiding over Senate impeachment trials of Presidents.)

    But more to the point, there’s nothing even judge-adjacent to the exercise of the pardon power. It’s executive clemency not a judgement of guilt or innocence.

    I also read the Brian C Kalt piece, all the way through, and I should like to suggest it to all law schools as a recommended text for demonstrating how to argue in the direction from conclusion to justification. Starting with wholly unamiguous text, Kalt floats a series of trial balloons, many of which would be mildly amusing speculations, if it were not for the case that speculation is unnecessary, the text being perfectly clear.

    I particularly enjoyed the section advertised as textualist, which advanced the notion that you should always read the text in context, but which offered no other bits of actual Constitutional text to consider alongside the operative phrase. Instead we were offered a textless theory of the “structure” of the Constitution. Woeful stuff.

  22. Ultimately, perhaps the best case for the validity of a self-pardon is the ancient legal maxim of expresio unius, exclusio ulterius, the expression of one thing excludes others. The Constitution expressly places two limitations – only for federal offenses and the exclusion of impeachments – on the pardon power. This argument would add a third limitation.

  23. I think Trump should pardon Biden.

  24. “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

    Why would this be interpreted as “all offenses” when other rights are not interpreted in the same way? E.g., you are limited in what arms you can bear, but it says you can bear arms, not all arms. Many cases like this. Makes no sense.

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