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.

 

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:

 

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.

35 comments:

8:19 pm • Saturday • July 22, 2017

Just remember that any hard-to-imagine scenario is all too easily imagined these days. I am not relying on Congressional Republicans to suddenly discover their conscience. If there are impeachment proceedings, it will be because the howls from home are too loud to ignore.

And even then, look how few heads the overwhelming objection to ACA repeal is turning. Tyranny is coming, because the Founders didn’t anticipate a situation where Congress was complicit in the crimes of the Executive.

Whether Tyranny arrives depends on whether Trump has the balls to pull the trigger. I don’t know that he will, but I’m not betting against it.

10:34 pm • Saturday • July 22, 2017

@nojo:

If Trumpian restraint is what we’re counting on, then I fear we’re doomed.

11:41 pm • Saturday • July 22, 2017

He’s about as good at lawyering as he is at everything except self promoting, being a delusional jackass, saying stupid shit and lying.

It is fortunate for the US Amercia that its first tyrannical asshole is a moron.

1:57 pm • Sunday • July 23, 2017

Let’s get real: Even wanna-be dictatorships only end one way, and it’s not a convoluted, ambiguous process like impeachment.

4:37 pm • Sunday • July 23, 2017

@¡Andrew!: Yeah, but heads on pikes doesn’t appear to be a popular option right now.

2:43 pm • Monday • July 24, 2017

Here’s a fascinating view from Nate Silver on how equally fucked up politics would still be if Clinton had won.

The upside of this horrifying national nightmare is that it has revealed the RepubliKKKan party as the fascist, racist, incompetent, destructive liars and con artists that they’ve always been. That’s what happens when you put the people determined to destroy the government in charge of running the government.

3:07 pm • Monday • July 24, 2017

Love this comment from TPM. Please dog, let this be what’s in store for the GOP.

In a way, the ever-growing extremism is like a stock bubble. As it progresses it sucks in people beyond the core of true believers. Everyone invested in it has a big stake in keeping the bubble expanding, but eventually reality intervenes–something unequivocally signals the fact that it is an illusion and once everyone sees it–or more accurately, once everyone realizes that everyone else sees it–the damn thing pops and takes down rational investors and the deranged ones indiscriminately.

Part of the dynamic is that at some point everyone knows a correction is imminent and they’re all looking over their shoulders wondering when the signal is going to come. Unquestionably Trump is that signal. The questionable part is whether they can keep the bubble inflated anyway. But if the analogy holds, once the exodus starts the collapse is going to be massive and very rapid.

4:10 pm • Tuesday • July 25, 2017

John McCain just had his Sophie’s Choice moment & gave both kids to the Nazis.

–Spicen Capwell

4:13 pm • Tuesday • July 25, 2017

@¡Andrew!: Maybe I should program a Like button after all.

6:24 pm • Wednesday • July 26, 2017

@¡Andrew!: @nojo: I was really needing one for this.

7:57 pm • Wednesday • July 26, 2017

@Mistress Cynica: I’m reading Magpie Murders right now. I’m about a third of the way in, and so far it’s the coziest cozy to ever cozy : )

11:49 am • Thursday • July 27, 2017

@¡Andrew!: daaaayum!

12:28 pm • Thursday • July 27, 2017

How I wish Hunter S. Thompson were still around to cover all this.

1:57 pm • Thursday • July 27, 2017

@mellbell: I might need to shoot myself out of a cannon before this is over.

8:20 pm • Thursday • July 27, 2017

If Scammydouche isn’t careful, he’s gonna blow it for Miss Congeniality.

9:30 pm • Thursday • July 27, 2017

@¡Andrew!: And when all this has passed — presuming the Earth hasn’t been burnt to a cinder — all this will have been forgotten, and the Right will resume pearl-clutching about the Left as if it never happened, and the evenhanded media will let them get away with it.

There are many Worst Things about all of this. One of them will be that we learn nothing.

2:45 am • Friday • July 28, 2017

@mellbell: Only if HST were doing some tag-team coverage with Molly Ivins.

6:00 am • Friday • July 28, 2017

@nojo:
Because if everyone did then how will anyone ever elect right wing shitheads ever again?

10:18 am • Friday • July 28, 2017
11:32 am • Friday • July 28, 2017

@Serolf Divad: Brilliant in concept and execution.

Also, I barked a couple times.

11:39 am • Friday • July 28, 2017

@Serolf Divad: When we can’t tell The Onion from “reality,” we’ve gots problems.

Also, I double dare Scammydouche to invite everyone in the White Trash House to say hello to his little friend.

Just last week, I thought we’d reached peak sleazeball. Srsly, we’re now dealing with Twitler’s second stringers, the ones who were too gross to make the first cut.

11:52 am • Friday • July 28, 2017

@¡Andrew!: The lesson here is that as bad as you think things are, there’s always room for them to get worse.

Oh, and Trump’s sudden transphobia? Bubbled up from some Fox bitching, which itself probably bubbled up from the murky depths of traitor media. Which makes sense, since he has demonstrated no ability to think for himself.

12:07 pm • Friday • July 28, 2017

@nojo: And to think that Scammydouche kisses the presinazi with that mouth!

Someone oughtta run on a platform of restoring honor and dignatude to the White Trash House.

12:16 pm • Friday • July 28, 2017

@¡Andrew!: Like Dubya?

2:55 pm • Friday • July 28, 2017

@nojo: There are loads of silver linings here, not the least of which is that health insurance access has been saved for tens of millions of people, for now.

With the ACA repeal failure, as well as the upcoming failures of tax “reform,” the budget deal, and most everything else on their agenda, talk soon will turn to ousting Bitch McCONjob and aPaulling Lyin for legislative incompetence. That’s two out of three pillars of the McCONjob/Twitler/Lyin Axis of Evil.

Couldn’t happen to a nicer bunch of shallow, wannabe despots.

2:59 pm • Friday • July 28, 2017

@¡Andrew!: Definitely. Plenty of ugliness to come, but plenty of hope in the face of that, starting with the Women’s March. That afternoon, I knew we’d get through this, somehow.

But damn, persistence is exhausting. And we’re gonna need a lot more before it’s over.

3:10 pm • Friday • July 28, 2017

@nojo: Actually I think this is proof that he is a fan of Sam B. She did a piece on Gomert last week (?) ranting to an empty chamber on this very subject.

3:34 pm • Friday • July 28, 2017

@nojo: They have all the power thanks to their racism and lies, so the least that we can do is help make their lives a living hell : )

3:42 pm • Friday • July 28, 2017

@DElurker: That’s where I cribbed it. Didn’t realize she was back from break so fast, so I didn’t see the segment until last night — last week’s show, not this week’s. And when that clip about military medical costs came up, holy shit — that’s where Trump got it.

Trump is weaponized Fox. He’ll use whatever they feed him.

5:00 pm • Friday • July 28, 2017

Down goes Wormtail! Down goes Wormtail!

5:09 pm • Friday • July 28, 2017

@nojo: John Kelly moves to the White House, leaving Homeland Security open again, meaning a fresh confirmation hearing. Maybe gets interesting, maybe not.

5:11 pm • Friday • July 28, 2017

@nojo: Mooch gets Trump to cut off Rancid Penis. Film at 11.

6:04 pm • Friday • July 28, 2017

@Dodgerblue: Wasn’t Rancid the last actual RepubliKKKan in the White Trash House?

OMG, it’s all Tdumbp facesuckers now!

6:32 pm • Friday • July 28, 2017

I’m betting that REXXON will be the next to meet the wheels of the Tdumbp bus. (kuhthunk kuhthunk)

6:33 pm • Friday • July 28, 2017

@¡Andrew!: Yup. Also some chatter that Reince was the only shoulder for congresscritters to cry on.

Trump strikes out at all enemies, and the only people who aren’t enemies are total loyalists. And then he strikes out at them, too. His incompetence is our blessing, and he’s working on that as hard as he can.

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