Executive Power

Can President Trump Pardon Himself?

The Constitution's words, history, and structure suggest the best answer is no. He can't plead, "I beg my pardon."

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Article II of the Constitution gives the president "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Donald Trump believes he has the power to pardon himself for whatever federal crimes he may have committed as president.

The presidential self-pardon has never been judicially tested. No president has issued a self-pardon, although there was serious consideration of it in the cases of Presidents Richard Nixon (for the Watergate scandal), George H.W. Bush (for the Iran-contra scandal), and Bill Clinton (for the Whitewater scandal). Neither has any president been criminally prosecuted.

In today's Washington Post, I argue the Constitution does not give him the power to pardon himself. Although he has claimed such a power, and soon may purport to exercise it, the constitutional basis for it would be weak. Here's some of the argument:

The "power to grant … pardons" is a legal term of art that, in its historical context, should not include self-pardon. The notion grants the president something akin to a monarchical power, a governmental form against which the very founding of the United States was a rebellion.

The concept of the self-pardon also violates other foundational principles of the laws on which the country is based. Justice Chase wrote in Calder v. Bull (1798), "[Regarding] a law that makes a man a Judge in his own cause … [i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it." In Federalist No. 10, James Madison contended, "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.

Self-pardons are a particularly noxious form of self-dealing that undermine the rule of law itself. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States "a government of laws, and not of men." Not even a president is above the law.

These principles would apply to any attempted presidential self-pardon.

But there is a further reason to doubt the self-pardon authority in Trump's case:

Pardons cannot be granted "in Cases of Impeachment." The dominant interpretation of this Impeachment Exception Clause is that it only prohibits a president from obstructing the impeachment process or shielding an impeached official from the consequences of a Senate conviction (e.g., removal from office and disqualification). . . .

Whatever the president's power to shield other impeached officials from criminal prosecution, the best reading of the Impeachment Exception Clause is that he should not be allowed to pardon himself. Here's why: The president is sui generis in our constitutional system. He is entrusted with mighty powers and unique obligations. The president "shall 'take Care that the Laws be faithfully executed." (Art. II, Sec 3) Yet impeachment calls into serious question his ability to do so.

While the executive pardon power is broad, the Impeachment Exception Clause could be understood in a correspondingly broad way to provide a check on the president's license to escape the consequences of his own lawlessness. This textual limitation on the pardon power could be interpreted as consistent with the Constitution's structure, because it would reinforce the separation of powers among the three coequal branches. It would prevent the president from avoiding a Senate trial and future ramifications in legal proceedings overseen by the judiciary.

Trump's conduct involves a "Case of Impeachment" (regardless of whether he is convicted by the Senate), and thus it would be excepted from the executive pardon power.

It seems unlikely this issue will be addressed in a federal court. Trump may decide, for strategic or other reasons, not to pardon himself. Whether he does or not, the Justice Department may decide, for legal or prudential reasons, not to pursue prosecution. And if Trump is prosecuted, he has possible defenses other than the self-pardon.

But if our Constitution and legal traditions are followed, he should not be allowed to plead, "I beg my pardon."

NEXT: Today in Supreme Court History: January 17, 1973 and January 17, 1996

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  1. There was no serious consideration of a self-pardon by Clinton in the Whitewater “scandal”. It was not a scandal and he was never in legal jeopardy. Let’s cut out this “bothsiderism”.

    1. That is just absolute bullshit and you should know it.

      Both David Hale and Jim MacDougall testified that Clinton conspired with them to get a 300,000 illegal SBA loan that benefitted Clinton. Both went to jail over that loan.

      Susan MacDougall went to jail rather than testify against Bill Clinton and confirm he was fully aware it was illegal and would benefit him.

      To say he was never in legal jeopardy over that loan is unmitigated bullshit.

      1. I mean, hindsight is 20-20, but the GOP wanted very much to get him and failed to so your evidence doesn’t seem to have amounted to much in the end.

        1. Now do Trump—Russia or Trump—Ukraine.

          1. You got me – I’ll stop calling Trump a criminal over Russia.

        2. Yeah but there is somewhat of a difference, there were at least 2 defendants that were convicted of the exact crime Clinton was accused of. So it’s established that the crime was actually committed, but not Clinton’s culpability.

          No one was convicted of collusion between the Russians and the Trump campaign, and no one was even charged.

          Manafort was charged for conduct well before he was hired by Trump, and laundering personal funds and lying. Pappadopolis, Flynn and Stone were charged for lying about facts of their own conduct that did not implicate Trump.

      2. Perhaps he should have been impeached over that loan, and I believe it was among the charges Starr recommended to the House, but what he was impeached over was his obstruction of justice in a sexual harassment lawsuit. He had evidence destroyed, (Used government resources to do it, so you can’t dismiss it as a private act.) he suborned perjury, he committed perjury.

        His guilt in this matter is scarcely at doubt, he ended up giving up his law license to avoid being disbarred. Democrats at the time didn’t argue he was innocent, but instead that the matter wasn’t serious enough to justify impeachment.

      3. Unfortunately the jury didn’t buy Hale’s and Jim McDougal’s testimony. And Susan McDougal was acquitted of the Clinton-related count of obstruction of justice.

    2. People that complain about “bothsideserism” or whataboutism are trying to avoid discussing their side’s bad behavior. They can’t excuse or defend it without looking foolish so they deflect hoping to dismiss it.

      It’s essentially a statement that their side is also awful.

      1. Whataboutism, I’ll give you.

        But bothesidesim is about how one side’s behavior is not nearly so bad as the other’s. Or even absent any badness entirely, as seems the thesis captcrisis argues with Clinton versus Trump.

        There is a defense of Clinton, which is that he didn’t do the thing Carpenter says he did.
        I’m too young to really know if he did or not, but that’s the argument, it’s at the least not fallacious.

        1. I’m not too young. Clinton pretty clearly got away with quite a bit of stuff during his time in power in Arkansas. So did the missus for that matter.

          Some folks did fall on their sword to protect the guy out of loyalty. Seemed like a huge deal at the time, but it was really run-of-the-mill financial corruption, which unfortunately isn’t all unusual among our elites.

          Same with the womanizing stuff. The guy was a horn dog. The only Clinton thing that really bothers me was that one of the woman issues he had was pretty close to credible rape. Not good.

          And even though I didn’t vote for Trump, I can’t say that I was sorry to see Hillary get what the Clintons had coming after all those years of corruption.

          And now you could argue that Trump is getting his comeuppance for all of his years of being an obnoxious, sleazy prick.

          Are we entering a new era of political karma?

          1. Sorry, I wasn’t clear. The discussion in the OP is about pardoning yourself. That’s what captcrisis is arguing.

            It would be news to me that Clinton considered it, though again I could be wrong; that era is not my specialty.

            1. I have no reason to believe that Clinton considered it. Don’t remember it even coming up at the time.

              Maybe he took the pardon he was going to give himself and gave it to Marc Rich.

              That’s a joke, people. Lighten up.

              1. He didn’t need to consider it, the fix was in.

            2. I was very much glued to the news in those days and no, there was never any talk of Clinton pardoning himself. (For what?)

              In fact both he and Hillary have been more extensively investigated than any other politicians. Nothing was found, nada. You could say that people they knew turned out to be criminals, but that’s true of me and all the VC’ers and everyone who comments here. We’ve all been associated with people who were doing shady stuff at one time or another — though we ourselves were never involved at the time and never even knew about it.

              1. “Nothing was found, nada”.

                Dude, you’re not even trying to be objective.

                1. So tell me, what were they indicted for? Cite the indictments and provide links.

      2. On the contrary. We complain about it because that’s the only response Trumpers ever give.

        They (you?)never, ever discuss or acknowledge the hideous behavior of Trump, because they immediately point to some red herring about Obama, or Clinton, or whatever else isn’t named Trump.

        1. Obama should have been impeached for intentionally killing an American citizen without due process. Yeah, the victim was a horrible guy, but the constitution protects the good and the evil.

          I’m not virulently opposed to Obama, but that shit ain’t kosher.

          1. I think he should also have been impeached for the Libyan war. I don’t buy the excuse that since they couldn’t fight back, that dropping bombs on a country without Congressional approval was ok.

            1. Any private individual who blows up a pharmaceutical factory in another country (e.g., the Al-Shifa pharmaceutical factory in the Sudan), killing a person in the process, is considered an international terrorist.

      3. No, the problem with both sides and what about is that it keeps anyone from being held accountable for anything. Any Republican who is accused of something simply finds a corrupt Democrat to talk about and vice versa. Since there will always be someone on the other side just as bad, everyone avoids accountability.

        Suppose Obama and Clinton were just as bad as Trump. I don’t believe that, but let’s run with it. Trump is the guy acting badly at the moment, so he is the one that needs to be held to account right now. Obama and Clinton aren’t currently a threat to the Republic; Trump is.

        1. Obama wasn’t, although his big sin was a really, really bad one.

          Clinton? Those two were pretty damn corrupt. And unethical. So maybe as bad, maybe not. But in the neighborhood. It seems like they were different because Clinton was so smooth and because the media loved the guy. Neither of those things are true with Trump.

          You wanna stop whataboutism/both sides stuff? Acknowledge that your side did what they did. Criticize your side for being hypocritical. So now your criticism of the other side is principled rather than just partisan hackery.

          Besides, the only way we’re ever gonna have parties with ethics is if they start getting criticism from their own side. I don’t think the partisans are up to it. Are y’all?

          1. No that won’t work. No matter what I acknowledge my side did, the other side will still go both sides and what about any time one of theirs is accused of something. So all my acknowledgement accomplishes is to make it about my side.

            For all their faults, neither Clinton nor Obama incited violence over election results they didn’t like. So far as I know, that’s sui genesis to Trump. Financial irregularities and not giving an enemy combatant due process aren’t even apt as what aboutism.

            1. Actually the “you” in some of that was the broader group you. Obviously if you start being objective alone nothing will be accomplished.

              Yeah Trump was awful. Clinton was too but he was such a scoundrel that most kind of laughed. It his getting away with it hurt Hillary for sure. I heard it from several center left people of my parents’ age – “those Clintons aren’t going to get away with it again “ – as they held their noses and voted for Trump.

              Obama was whatever except for the intentionally killing an American thing. Seems to me that violates the 4th.

              1. “Clinton was too but he was such a scoundrel that most kind of laughed.”

                Clinton benefited from an early and fairly mild version of the media bias Trump faced: They were generally downplaying how bad anything he did was.

                But what really saved him was Filegate, and the Republican leadership being so vulnerable to blackmail. The House impeachment leaders just fell over themselves to throw out most of the available charges after a dirt dump took out Livingston.

              2. I see both sides of the Obama thing. The contrary argument is that when we’re at war, enemy combatants are fair game. If a US citizen had join d the Luftwaffe, would he really have been entitled to due process before we shot down his plane?

                And my objection to the what aboutism continues to be that it means Hitler is off the hook because what about Stalin, and Stalin is off the hook because what about Hitler. If fact, at Nuremberg some of the Germans on trial tried arguing what about Stalin. It didn’t work out for them.

                1. On your Luftwaffe question, no of course not. That clearly wouldn’t work.

                  On Obama, we weren’t actually technically at war were we?

                  The Obama thing, to me, comes down to this – if a president can get a finding that permits him to do something that clearly would violate the constitution absent the finding, and then does that something, there is effectively no restraint on the power of the president.

                  1. Tell the victims of 9/11 and their families we weren’t actually technically at war. Al Quada is a non governmental quasi military organization that has declared war on the United States. Neither it nor the people who join it have any right to be surprised if we then treat it like war.

                    1. Maybe. Not sure we were legally at war, but grant that we were. Is there a “war” exception to the 4th amendment?

                      In reality no. In practice yes. And that phantom exception gives us Gitmo and the Obama killing. Not stuff I want to defend.

                      My zealotry isn’t spent in favor of the Rs or Ds. I’m a zealot on the Bill of Rights.

                    2. It’s not that there’s a war exception to the Fourth Amendment; it’s that the Fourth Amendment doesn’t apply to enemy combatants at all. Once a war is underway, if you sign up to fight for the other side, your citizenship becomes irrelevant. He was no more entitled to due process before being blown up than was any other Al Quaeda combatant.

                      I object to the fact that people were tortured and badly treated at Gitmo, not that Gitmo exists. Prisoner of war camps have existed as long as war has existed.

                    3. Yeah, you’d have a point if they’d been killed in a war zone, in battle, rather than assassinated outside war zones. Often people who could easily have been intercepted in travel and arrested were instead killed.

                      They were launching missiles into civilian areas that weren’t war zones, on the basis of indirect targeting like where a cell phone was! Bombing wedding receptions and restaurants. And we don’t know how many US citizens they killed, because, secret program. We only know how many they admitted they’d killed.

                      For example, from Politifact’s half hearted defense of Obama:

                      “Al-Awlaki’s 16-year-old son, a U.S. citizen born in Denver, Colo., died Oct. 14, 2011, in Yemen when, the Times wrote, “a missile apparently intended for an Egyptian Qaeda operative, Ibrahim al-Banna, hit a modest outdoor eating place in Shabwa. … Banna was not there, and among about a dozen men killed was the young Abdulrahman al-Awlaki, who had no connection to terrorism.”

                      It was a covert program, the details of which have never been released. We don’t even know for sure all the killings were overseas!

                    4. Once war is underway I’m not sure it matters where combatants are physically located. During World War II we shot down a plane over international waters that had a Japanese admiral aboard. I have no problem with that.

                      The relevant fact is that a state of war exists between Al Quaeda and the United States, which Al Quaeda declared. Al Quaeda combatants are therefore fair game any time, any where, and regardless of their citizenship.

                    5. And anybody with the misfortune to be in the same restaurant, too, I guess. We may have shot down a plane that had a Japanese admiral aboard, but was it a civilian airliner full of vacationers? Why, no. It was a Japanese bomber, a legitimate military target in any case.

                      Obama was utterly reckless in his use of missiles to assassinate people. He had missiles launched into peaceful civilian territory just on the basis of a cellphone associated with the target having been located, and never mind who might be standing nearby. The innocent death toll totally eclipsed the number of legitimate targets.

                    6. And when I say never mind, I don’t just mean they didn’t care, they didn’t bother to know.

                      It was just dumb luck they didn’t fire Hellfire missiles into an orphanage or hospital at some point.

                    7. I agree with you that civilian casualties should be avoided whenever possible, but that’s a separate issue from whether Al-Awlaki was a legitimate target. He was.

                      I also agree that a restaurant is not a legitimate target, at least not without more, just because he’s eating there. But if people who are actively sheltering him get blown away too, and it deters other people from sheltering Al Quaeda operatives, I’m fine with that too. There is no such thing as a war without casualties. Which is actually a pretty good argument against war, but that’s a separate question.

                    8. It wasn’t even a matter of him eating there. At one point one of their targets loaned their cell phone to a daughter, IIRC, and the daughter got bombed, because they literally were not checking to see what was around the cell phone. It was just, “Oh, look, we located the signal of a cell phone we’ve associated with the target, launch the missile.”

                      It was monstrous, really. Obama got away with things that would have had Trump on trial for war crimes.

                      And to be a bit bipartisan, look at Iran Contra. That was totally the stuff of impeachment.

                      If you look at the things prior Presidents got away with without being impeached, the push to impeach Trump really starts to look absurd.

                    9. Brett, even if you are completely correct about the facts, Trump is different because of his attacks on our democratic institutions themselves. I used this analogy earlier: it’s the difference between a boy slapping his sister and a boy slapping his mother. Both are completely unacceptable, but one is a structural attack on the integrity of the family itself.

        2. Trump is the guy acting badly at the moment, so he is the one that needs to be held to account right now.

          There’s an excellent line by Tom Cruise’s character in The Firm, “Mitch McDeere,” when the federal agent is complaining that there are more bad guys out there:

          Mitch McDeere : I got mine, Wayne, you get the rest of them.

          I know nothing at all about politics (e.g., I didn’t think there was any chance Trump could win in 2016, based on his constituency seemingly limited to angry white men) but it seems to me it could actually improve a party’s “brand” if they did “get mine”.

  2. No federal crime was committed. Will the left succeed in making politics a crime regardless of the law? They’re trying really hard.

    1. Well, then, no need to self pardon, huh?

      1. Depends on whether the left completely ignores the law. If they do, then a pardon will be yet another legal hurdle they’d have to ignore.

        If they obey the law, then no need for a pardon.

        The need for a pardon rests on a prediction of the future. Just how lawless will the left be? Will the courts go along with their lawlessness? We don’t know the future.

        1. Ignoring all law except for pardons seems a very specific amount of ignoring the law.

          1. More is harder to ignore than less.

            The left can pretend a politician saying the word “fight” is incitement even though every politician says it in just about every speech and none of the others are guilty of incitement. That’s, in fact, what they are doing.

            1. Trump was, best interpretation for him, extremely reckless. Spectacularly so.

              Trump did a metric shit ton more than say fight in a speech.

              Is recklessness that results in injury a crime? Sometimes it is.

              1. But not when it is speech.

            2. Newsflash: context matters. Saying “fight” in a speech at a convention of securities brokers about the government’s plan to regulate corporate mergers is not the same thing as saying “fight” to an angry mob who you’ve been telling for months are needed to stop people from stealing an election.

              1. This. It’s the willful/deliberate refusal to see Trump’s speech in context that’s so infuriating. You make 15 separate public speeches (plus hundreds of tweets) over a period of weeks and weeks and weeks, whipping your followers into a lather. Each individual example of speech is not, in of itself, enough to be criminal. (I’ll assume that, for argument’s sake.) But his followers seem to be saying, “Legally, that’s the only way to look at things. If each individual speech is not criminal, then the combination of speeches/tweets cannot be criminal.” That does not make a lot of sense to me, but–unlike a bunch of pro-Trump arguments we’ve heard over the past 5 years–it’s not a crazy legal argument. Just infuriating. Will this argument prove effective? Well, that’s why they build courthouses, I guess.

                1. Since the basis for making speech criminal is imminent harm, that IS the only basis for making it criminal.

                  And, as I keep pointing out, by the standard you’re suggesting, Bernie incited the House baseball shooting, and more Democrats than you want to think about incited last summer’s riots, and much more directly, too.

                  1. Yeah, but they don’t want to make politics that they agree with into a crime.

              2. Audience doesn’t change protected speech into a crime.

                1. That’s not what Brandenburg says.

                  1. Every politician ever is a criminal then. Someone might do something.

    2. No federal crime was committed.

      The president and all members of congress take an oath. I’m too lazy to look at the exact words of the congressional oath of office, but for the president it is to “…preserve, protect, and defend the Constitution of the United States.” And part of that Constitution says that one of the jobs of the president is to “take Care that the Laws be faithfully executed.”

      If a president violates that oath, that is not a criminal violation, but it is a violation of the law…the Constitution.

      In this case, Donald Trump specifically urged a crowd that it could play a part in helping to do something that clearly violated the Constitution. On Jan. 6th, Trump said:

      States want to revote. The states got defrauded, They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

      There is absolutely nothing in the Constitution that allows a vice president to “send it back to the states to recertify”…so Donald Trump was publicly urging his vice president to do something that clearly violates the law…the Constitution of the U.S. And he was inciting his supporters to give Mike Pence the “courage” to violate the law.

      1. Never mind!

        I was toggling between conversations on several impeachment posts, and I didn’t realize that I’d gone to the “self-pardoning” post.

        Donald Trump has probably committed enough state crimes (e.g. tax fraud, financial fraud) to put him in prison for a considerable period, so even if he could pardon himself on the federal level, it’s very plausible he could still end up in prison.

        So I’ll go back to other posts that address the *real* danger of Donald Trump, which is his belief that words (e.g., the words of the Constitution) mean nothing, and that a a president do whatever he or she wants, regardless of the plain words of the Constitution.

        1. Oops. I meant to sign as “Emily Littela”.

  3. Ah, another proud posting on a libertarian blog expressing the sentiment of that most freedom loving quote: Show me the man and I will show you the crime.

    1. It really has gone to pot around here, hasn’t it?

    2. This post has nothing to do with Trump’s crimes or lack thereof.

    3. As “Sarcast0” notes, this post has “nothing to with Trump’s crimes or lack thereof.”

      It’s whether any president can ever pardon herself or himself.

  4. More false, politically motivated lawfare by the lawyer scumbag profession. 135 times, the Supreme Court has ruled the definition of a word is the dictionary definition.

    Grant: 1. to confer, esp. by a formal act: to grant a charter.
    2. to give; accord: to grant permission.
    3. to agree to: to grant a request.
    4. to accept for the sake of argument: I grant that point.
    5. to transfer or convey, esp. by deed or writing: to grant property.
    n.

    Trump should pardon the pro-Democracy movement that invaded the Congress. They stood in opposition to a permanent one-party state under Communist rule, as in Venezuela, Cuba, and China. Trump should pardon himself. If the permanent one party state comes to pass in the US, as it has in California, many casualties would be justified to stop it.

    1. You need to update your software.

      1. He needs to see a psychiatrist.

  5. “As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States “a government of laws, and not of men.” Not even a president is above the law.”

    That is ironic, and funny. Biggest law breaker in US history promoting the rule of law. That lawyer scumbag and insurrectionist against the constitution broke so many laws and rules, he should have been arrested.

  6. I had had some doubts, but seeing the weakness of the arguments against self-pardon, it seems pretty clear that the President can pardon himself.

    The pardon power does indeed give the President the power to make people above the law, and there’s no exception for the President himself. Indeed, there is an exception for impeachment, which implies that there are no other exceptions.

    1. Amazing you’d come down that way after your doubts.

      In such a novel case, a purposivist argument seems as good a starting point as any; what’s so weak about it?

      1. I don’t know. Can you point me to it?

        1. The OP makes 2 arguments.

          The first is an originalist one:
          In Federalist No. 10, James Madison contended, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.

          The second is a textualist one – the that impeachment is not criminal and thus not reachable by the pardon power.

          I would say there’s a third argument, a purposivist one. That the purpose of the pardon power is to allow for an additional chance to do justice outside the mechanisms of the legal process – a chance for lady justice to peek behind her blindfold and let in the quality of mercy, if you will.
          A self-pardon does not fulfill this purpose due to the conflict of interest; mercy to oneself is not really a virtue, nor is it justice.

          1. “I would say there’s a third argument, a purposivist one. That the purpose of the pardon power is to allow for an additional chance to do justice outside the mechanisms of the legal process – a chance for lady justice to peek behind her blindfold and let in the quality of mercy, if you will.
            A self-pardon does not fulfill this purpose due to the conflict of interest; mercy to oneself is not really a virtue, nor is it justice.”

            +1, very well put.

            Similarly, we don’t want to get in the habit of going after ex-presidents. Suppose you have some future president wondering ‘should I go peacefully, or just try to take over?’. You want a peaceful retirement to be one of the options.

            1. I don’t think we really know the purpose of the pardon power, but the fact that a self-pardon might be inconsistent with its purpose isn’t necessarily an argument that it can’t be done. Lots of things are inconsistent with a law’s purpose and yet legal. For instance, the purpose of the First Amendment was some theory of self-government. And yet it protects pornography, violent video games, and a whole bunch of other things that have nothing to do with that purpose? Why? Because the text is so broad and the concept allows for that.

              The basic problem here is exactly what Twelve Inch says- the arguments against a self-pardon are incredibly weak. They basically boil down to an emotional plea- “how can the Constitution possibly permit this?”. But that’s not legal reasoning. The self pardon issue has actually received discussion for a long time, and yet nobody amended the Constitution and got it out of there, despite the fact that if the consensus were truly so strong against the notion of a self-pardon it would have been possible to do it (the President would not be involved in the amendment process).

              The fact of the matter is, the self pardon is constitutional for the following basic reason- it will be upheld by the current judiciary. Seriously, that’s all that has to be said about it. Scholars will whine about it, but absent some actual scholarship as opposed to scholars doing op-ed punditry (i.e., statements by framers that the pardon clause does not permit self-pardons), it’s going to get upheld.

          2. The first argument is weak, the Federalist papers are not law.

            The second argument is irrelevant, it tells us exactly nothing about the scope of the pardon power.

            Your third argument seems somewhat circular.

            1. 1. Original intent is kind of a big deal to a lot of people on the right. That’s nontrivial evidence of that.

              2. What do you mean? The scope is criminal, based on past usage. Are you aware of any exceptions? You can’t pardon someone from losing a contracts case. Similarly, impeachment isn’t criminal, and therefore outside of the scope.

              3. Also no. The purpose of the pardon power is to bring justice to the law. A self pardon does not fulfill that purpose. Certainly that is not circular. Do you think the purpose of the pardon power is otherwise, or that self pardoning enhances the pursuit of justice in some way?

              1. 2. The scope of the impeachment power has zero relationship with the scope of the pardon power.

                3. This definition of the pardon power is incompatible with the way the pardon power is used at the state level in most states. It is used for forgivness, it is almost never used to correct unjust convictions and several states explicitly bar pardons on the basis of actual innocence

          3. “A self-pardon does not fulfill this purpose due to the conflict of interest; mercy to oneself is not really a virtue, nor is it justice.”

            The problem is that the pardon power isn’t constrained by conflict of interest. Agree or disagree, the President is allowed to exercise the pardon power in cases where it serves his interest to do so. The only exception listed in the text is impeachment.

            1. So you don’t buy purposivism, and wantto go in a more formalist direction. Well, that’s what’s in the OP. Both original intent, and the text itself.

              I suppose you could also go back to English common law to see whether pardons were only criminal, but certainly in the US they have been.

            2. TiP: I’m going to do the cranky geezer thing here.

              There’s a place for formalism, but I don’t think this is it. That notion – ‘hey, this makes no sense, but a well practiced lawyer could make the argument with a straight face, so it’s OK’ – is dangerous, just like the intolerance of wokeness.

              Anecdote: I worked once for a grant funded charity place. It was doing great work. They needed new computers, and sent out grant requests. One grant came back, yay!, and they bought new CPUs and monitors. Then, yay!, a second grant came through. So now they could buy new printers too. But wait … both grants were for ‘computer systems’. You could argue a printer wasn’t a ‘system’. So they ordered a bunch of cheap PC’s, monitors, etc, each with a high end printer. I could hear the person in charge telling the warehouse folks to pull out and deliver the printers, and warehouse the unboxed PCs for the required 5 years before selling the then-worthless PCs for surplus.

              You can look at that and say ‘hey, all the i’s were dotted, it’s good’, or you can look at it and say ‘that is such a stupid waste of the taxpayer’s dollars that it is wrong regardless of the formalities’. I tend toward the latter; you never want to normalize, or immunize doing stupid things.

              If there was august, binding precedent that the president, or governors, could self pardon for anything and everything, well OK. But there isn’t, and I don’t think we should resolve any ambiguity in favor of the stupid interpretation[1].

              (and I’m not saying this because I want to get Trump, I think the current impeachment and talk of future prosecution are very ill advised)

              [1]Boy, I bet future Illinois governors are really eager for self pardons to catch on!

              1. “If there was august, binding precedent that the president, or governors, could self pardon for anything and everything, well OK.”

                Except it doesn’t work that way. The text places zero limits on the pardon power. It is up to those claiming the existence of a limit not in the text to find binding precedent to support that limit.

    2. The pardon power does indeed give the President the power to make people above the law,…

      No, it does not. There is no pardon power for future crimes. And the pardon power for previous federal crimes is *in* the law–the Constitution of the U.S.–so no one who is pardoned is “above the law.”

  7. Why are we even having this discussion? Seriously, why?

    The answer is that the President of the United States is credibly suspected of having committed crimes while in office or before he took office. The fact that the President himself is broaching the topic says that he is aware of the fact that he may have committed crimes.

    What a legacy!! And even if this is rejected, the real legacy of this odious man is the fact that it is taking a heavily armed military force of 25,000 soldiers to safely innaugurate his successor. What a stain on our democracy.

    1. All the accusations of crime by Trump followed the election of 2016. You scumbag lawyers are making lawfare on my vote for him. Because the legal system is rigged by you scumbags, and there is no legal recourse, real warfare has full justification in formal logic. The contrapositive of a true assertion is always true. If you believe that legal liability is a replacement for endless cycles of vengeful violence that make life unlivable, then immunity of the Democrat lawfare wagers justifies real war. Mueller, Pelosi, and Schumer should be arrested for their insurrection against the constitution in their pretextual legal attacks on Trump.

      1. Ridiculous. Possibly criminal prosecutions of a president is in no way lawfare on your vote. And also insane is the idea that legal action against your chosen candidate is grounds for violence.

        1. Yeah, political violence is really bad, huh.

        2. Did you not see my comment about the contrapositive of a true assertion is always true in formal logic? Violence has full justification in formal logic. That has more certainty than the laws of physics, and no exceptions.

      2. So in this formal logic argument in which you take the contrapositive of some true statement of the form “A implies B,” what *exactly* are A and B?

    2. Sisney, remember how Ford justified Nixon’s pardon — for the good of the country. Trump could say the same about a self pardon.

      1. How convenient. But I suspect he would justify it by painting himself as the victim of an unjustified “witch hunt.” Of course, usually folks falsely charged start out by saying that they welcome the opportunity to prove their innocence. Assuming his contemplation of a self-pardon is accurate reporting, Trump does not welcome such an opportunity. Particularly given Trump’s litigious nature, you’d think he would also look forward to being able to sue for malicious prosecution and constitutional violations for any case that is “manufactured” against him. Again, he seems unsure that this would be case.
        My own feeling is that it would be unseemly to prosecute a former POTUS–it would be like promising to lock up your political opponents; such a course of action should not be pursued. On the other hand, I think that a “self-pardon” would force prosecution, just to avoid the precedent. That is, I would only favor prosecution in that event. The notion that a president could, say, order a political opponent or his vice president assassinated for “treason”, and if found out, simply pardon himself is not a situation I think the framers intended. The prudential decision not to prosecute by one’s successor is one thing. The ability to remove all threat of criminal sanctions against oneself is a power I do not believe can be reasonably read into the constitution, else it must be deemed to have created a king, not a chief executive.

        1. Why would he welcome it? He’s 74, for goodness sake. They could keep him tied up in court for the rest of his life without much trouble.

  8. What a novel question?

    I wonder if some other lawyer had ever discussed the topic before…

  9. “As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States “a government of laws, and not of men.””

    ROTF,L — do you have any idea who it was that didn’t get Marbury’s commission to him before midnight? Yes, one John Marshall, the same man trying this case.

    1. The fact that Trump could pardon himself may be the logic behind the impeachment because of the “in cases of impeachment” clause.

      In other words, Trump can pardon himself *except for* the criminal charges of inciting a riot and such that are in the case of impeachment.

      1. Nope. Presidential pardons have no effect on impeachments, and visa versa. You could impeach somebody on the basis of a crime they had been pardoned for, you could pardon somebody for a crime they’d been impeached over, but they’d still be impeached.

        Impeachment simply does not interact with criminal law.

  10. Maybe the originalists here can address this. The Constitution doesn’t define the pardon power, it confers the pardon power, whatever it is (with the exception of impeachments), on the President. The pardon power was originally exercised by the King. The King, famously, could do no wrong and, therefore, the very idea of a self-pardon was incoherent, since he would never need one. Who, then, had a power of self-pardon that could have been conferred on someone else, like a President?

    1. The president does suffer legal threats from people out to get him. They even made hay of state investigations “in case he pardoned himself”…for investigations out to get him, that would never have been done but for political outrage at his behaviors.

      He brought this on himself, and I didn’t vote for him, twice. But I despair at the joy his opposition feels at getting a political opponent by using the government’s power of investigation to look for something, anything, to tag him with. He’s an awful loudmouth, but so are the opposition.

      Anyway, pardoning oneself against “Get him!” politically motivated investigations is not some horrid thing. On the other hand, he did run on “Lock her up!”

      If he pardons himself, it will be the only time a president does so, as I suspect an amendment will soon follow.

      It took 20 years for the politically-motivated behavior of the Republicans to fish for something to tag Clinton with to catch up to them.

      I really am saddened what this might yield in return some day. Greater normalization of endless fishing expeditions is in violation of the principles behind a lot of the constitution: using the government’s power of investigation against your political enemies.

      1. “It took 20 years for the politically-motivated behavior of the Republicans to fish for something to tag Clinton with to catch up to them.”

        Oh, give me a break. The Clintons were hip deep in scandals even when he was just a governor, with an already established track record of corruption. The Republicans didn’t need to ‘fish around for something’, it was shooting fish in a barrel finding something to impeach him over.

        The reason they only impeached him over the obstruction of justice charge is that the Republican leadership were between a rock and a hard place: If they didn’t impeach Clinton, their own base would never forgive them. But if they did impeach him, all their dirty laundry would be exposed, and they had a LOT of dirty laundry.

        Remember Bob Livingston resigning after that dirt dump? That was the warning shot, and the whole effort to impeach turned into a farce after that. In the end, the GOP House leadership were too dirty to take Clinton down. He’d have taken them all down with him. Heck, they replaced Livingston with Dennis Hastert, who was revealed later to have been a pedophile.

        Just before that resignation they had held a dramatic vote to investigate every possible charge against Clinton. Immediately after, that proposal went in the dumpster, and they settled for bringing the least consequential and easiest to prove charges, and then took a dive in the trial.

        Because they couldn’t personally afford the consequences of winning.

    2. That argument cuts the other way- in favor of blanket sovereign immunity (and note, we still do have a lot of sovereign immunity in this system- Presidents pardoning themselves could simply be an additional assertion of it).

  11. If Trump pardons himself too much he’ll go blind.

  12. “The “power to grant … pardons” is a legal term of art that, in its historical context, should not include self-pardon.”

    Yeah, but we’re not discussing whether it should include self-pardon, we’re discussing whether it does include it. I see no language qualifying the power in that regard, so I presume it does.

    It’s rather irrelevant, what’s he going to pardon himself FOR? Some fantasy crime that hasn’t even been specified?

  13. If President Trump issues a pardon for himself he will force the issue and I believe the DOJ will have to challenge the pardon. To allow it to stand would place a President to be above the law. If Trump really wants a pardon he would resign early and allow President Pence to issue the pardon. This is less likely to be challenged.

    Much of this is academic because the bulk of Trump’s legal exposure appears to be in state and civil courts. A Federal pardon will do little to help him in these courts.

    1. If Trump really wants a pardon he would resign early and allow President Pence to issue the pardon. This is less likely to be challenged.

      There’s no possibility of a legal challenge there. It might be unseemly, but it’s unquestionably valid. He wouldn’t do that for several reasons, among them being that he couldn’t trust Pence to do that, particularly after the way he fucked Pence on 1/6.

      1. Two reasons he wouldn’t pardon himself:

        1) For federal crimes, it would be like waving a red flag in front of the DOJ’s bull. There aren’t any charges threatening, but they’d find SOMETHING to prosecute him for regardless, if he did that.

        2) Pardons don’t protect you against state law, and state prosecution is the real threat against him.

  14. The Constitution makes no distinction on who a President can and can’t grant pardons to. The only limitation is against pardons for impeachment. Going simply by the plain text, which in my opinion is what should be done, Trump can pardon himself for anything that he wants to except for impeachment. I would also argue that extends to state crimes, as the Constitution overrides any state constitutions or laws.

    1. I would also argue that extends to state crimes,

      Weird how you refer to the constitution until it expressly says something you disagree with, at which point you just completely ignore it.

      1. To be fair, he was just a kid the last time he was actually on Earth, and hadn’t finished the civics class.

  15. Can he issue a self-pardon document in the same manner as the other pardon documents he has been issuing, sure, fill in the name of the pardoned person, sign or rubber stamp at the bottom.

    A self-pardon document would be one more layer of having any potential case delayed in the courts. Ultimately it would wind up at SCOTUS to assess the validity. Convictions can only happen while someone is still alive, so there is simply the option as defendant to attempt to run out the clock with judicial obfuscation.

    Only other question for him is one of optics and the history books. Will he want to be the first president to issue a self-pardon as the door hits him in the rear on the way out.

  16. No reason to take the most generous interpretation for this right vs the rights of civilians articulated in similar ways which we know in practice are limited.

    1. The people who are arguing: “The Constitution doesn’t say he can’t,” might want to ponder the implications of that standard on other issues.

  17. Most of the approaches I’ve seen to this question boil down to a simplistic “yes he can!” or “no he can’t!” conclusion. I admit that the question is hard, and either of those might be the right answer, but I have a middle view: a self-pardon would be effective but would certainly be impeachable and maybe even prosecutable.

    To start with, I do think that the President has the *power* to issue a self-pardon for any and all federal offenses committed up to the moment of the pardon. In other words, such a pardon would conclusively bar prosecution of any such offenses. In the absence of a textual exception, the quotes from the Federalist, the history of the Kings of England, etc., don’t persuade me otherwise. After all, at least in modern times, judges can’t judge their own cases because there’s a statute that says so (28 USC 455) and a procedure to back it up (FRAP 21); and the fact that that King was never exposed to criminal liability under English law just goes to show the absence of useful precedent.

    But the President’s *power* to grant a self-pardon doesn’t mean that the President has the *right* to do so. First, a self-pardon would be an ignominious abuse of power, and would I think be obvious grounds for impeachment, removal and disqualification. Should be a 100-0 vote in the Senate, although you never know with Republicans these days.

    Second, I think that Congress has the power to criminalize corrupt uses of the pardon power. (Some have argued otherwise, on the grounds that the pardon is a constitution power of the President, but I consider that argument to be a non sequitur. After all, the appointment power is a constitutional power of the President as well, but nobody thinks that the Constitution somehow immunizes the President from a bribery prosecution if he sells a cabinet seat. A corrupt exercise of the appointment power might be an effective exercise–i.e., the appointee would remain in his position until removed–but would still be a prosecutable exercise. Likewise, a corrupt use of the pardon power could be prosecuted even if it could not be reversed.) In this case, although the issue is not free of doubt, it seems to me that a self-pardon would violate 18 USC 641, which criminalizes the embezzlement, stealing, purloinment, or conversion of any “thing of value” of the U.S. government. I understand that “thing of value” appears several places in the U.S. Code and has been interpreted quite broadly. Furthermore, a pardon can only be retrospective, so I don’t think a President could pardon himself from a crime that is completed at the instant that he grants himself the self-pardon.

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