Why Donald Trump Will Not Pardon Himself and If He Tries He Will Fail.
Today is a day ending in “y” which means that Donald Trump has once again done something outrageous that shows his utter contempt for the idea that the United States is a nation of laws and not of men. What’s got most people of good conscience raising eyebrows is a tweet in which the President seems to indicate that if need be he will not refrain from leveraging the Presidential pardon authority to write himself and his family members a “get out of jail free” card should Robert Muller decide to bring charges as a result of his investigation of Russian collusion and obstruction of justice.
While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS
— Donald J. Trump (@realDonaldTrump) July 22, 2017
As usual Donald Trump is trying to be too cute by half here, at once asserting that he is innocent of any real crime (it’s all just “fake news”) but at the same time insisting that “everyone” agrees that his pardon authority is unlimited and thus, one must surmise, applicable to himself.
Despite what Trump would like to believe there are real questions as to whether the president in fact has the power to pardon himself: see here and here. Now I’m no constitutional scholar, and not even a lawyer, but if I might offer an opinion I would suggest that the President’s inability to pardon himself follows from Article II, Section 2 of the Constitution where the power of the pardon is explicitly granted to the President and its limitations laid out:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
What is of interest here is the bit I have reproduced in bold. The Constitution explicitly states and scholars all agree that the President cannot grant pardons in cases of impeachment. But consider this: if the president can pardon himself for all the underlying offenses that would prove grounds for impeachment then this exception would in effect be rendered null and void. It follows therefore that this clause is either meaningless padding to the U.S. Constitution or that it prohibits the sort of self-dealing that Trump is contemplating. Take your pick. I have a hard time believing the Supreme Court would agree with the former.
Stepping away from amateur lawyering for a moment there is another reason why I believe Trump won’t pardon himself (and may not even pardon his family members). This is a psychological observation that I believe we can reasonably surmise by looking at the contents of a different tweet, this one issued in reaction to the outcome of the “Trump University” lawsuit. Although Trump was forced to pay $25 million to settle the suit in which students of his fake university allege they were defrauded and provided an expensive but substandard, joke of an education, Trump here too refused to acknowledge that he’d done anything wrong, let alone illegal:
The ONLY bad thing about winning the Presidency is that I did not have the time to go through a long but winning trial on Trump U. Too bad!
— Donald J. Trump (@realDonaldTrump) November 19, 2016
Why is this significant? While most scholars agree that a president can pardon a man before he is convicted of a crime, they also tend to agree that the president cannot pardon a man for a crime he has not yet committed. Here is the conservative Heritage Foundation:
A pardon can be issued from the time an offense is committed, and can even be issued after the full sentence has been served. It cannot, however, be granted before an offense has been committed, which would give the President the power to waive the laws.
For Donald Trump to pardon himself he would have to admit that he was indeed guilty of a crime or likely to be convicted of such. He is constitutionally prohibited from pardoning himself for a crime he has not yet committed. It follows then that Trump cannot pardon himself while simultaneously insisting that he has committed no crime. If he were to try that I would submit that his pardon would pre-emptively be rendered null and void. Intentionality matters in this case. The president, in granting a pardon, must intend to pardon someone he believes to be guilty of a crime. I can’t fathom that Trump’s ego would allow him to do this. In fact, I’m not even sure it would allow him to pardon his family members.
There is one large caveat here, one possible escape hatch for Trump, and that is Gerald Ford’s pardon of Richard Nixon in 1974. This pardon was issued in the wake of Watergate and Nixon’s resignation and the most relevant passage reads as follows:
…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.
Gerald Ford pardoned Nixon for “all [unspecified] offenses against the United States” during the time of his presidency. Might Trump issue a blanket pardon for himself and his family in a manner that might allow him to avoid specifying the crimes for which he was pardoning himself? This approach would allow him to have is cake and eat it, too, it would seem.
The rub here is that while Gerald Ford did indeed issue the above pardon it was never challenged in court and thus the Supreme Court never had an opportunity to rule on its constitutionality. The country was traumatized by the Nixon impeachment and it is generally agreed that Ford pardoned the disgraced former president in order to move on and allow the nation to heal. Those who might have had the power to challenge the decision largely agreed with that sentiment and no serious legal opposition was mounted.
It is probably a good thing that Ford’s pardon never reached the Supreme Court, because caught up in the “let’s all move along so the country can heal” zeitgeist the court might well have ruled in its favor thus setting the precedent that a president can issue a blanket pardon for unspecified crimes. But in the absence of such a precedent the Supreme court now has full discretion and great flexibility to carve out limits to the presidential prerogative of pardon and do so in the context of a corrupt president attempting to leverage the power of the pardon to place himself above the law and escape punishment for impeachable crimes he himself committed while in office. How do you think the justices will rule?
So, to summarize the reasons why I think a Trump self-pardon would fail:
- Trump will never admit he was guilty of any crime, and no president can issue a pardon for a crime was never committed. Any pardon thus issued would be pre-emptively null and void.
- It Trump somehow overcame his ego, admitted to crimes and tried to issue a self-pardon Congress could render that pardon null-and-void by making the crimes to which he admitted the reason for impeachment. The Constitution explicitly prevents a president from issuing a pardon in cases of impeachment. It’s hard to imagine any president pardoning himself and Congress not immediately initiating impeachment hearings.
- If Trump tries to issue a blanket pardon for unspecified offenses in an attempt to avoid impeachment the Supreme Court will have a say and it’s unlikely any justice, let alone a majority of the court, would rule in Trump’s favor, thus investing the president with the power to grant himself blanket immunity from all crimes he may have committed while in office.
Is it possible that Donald Trump will try to pardon himself and his family for crimes arising from Robert Muller’s investigation? Yes. But there are clear avenues by which such an attempt can be either pre-empted or rendered null and void. In an authoritarian regime where there are no effective systems of checks and balances to presidential power then none of this would matter. I don’t believe we have turned that corner… not just yet.