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December 4, 2020
President Donald Trump tweeted, “I have the absolute right to PARDON myself.” Can the president grant himself a pardon? Yes. Will it ensure that he does not go to jail? No.
Pursuant to Article II, Section 2 of the United
States Constitution, the “Power to grant Reprieves and Pardons for Offenses
against the United States” is vested in the president. In the nearly four years
that Trump has been in office he has granted 27 pardons and 11 commutations.
Whether Trump can pardon himself is an unresolved
legal question. No president has ever tried to pardon himself. As a result no
federal court, including the United States Supreme Court, has directly
addressed the question.
However, in 1866, the U.S Supreme Court did say,
“The Constitution gives him (the president) unlimited power in respect to
pardon, save only in cases of impeachment. The Constitution does not say what
sort of pardon; but the term being generic necessarily includes every species
of pardon, individual as well as general, conditional as well as absolute.”
Supporters of the idea that the president can pardon
himself emphasize the lack of constitutional language limiting the president’s
authority. Robert Nida and Rebecca L. Spiro wrote in the Oklahoma Law Review
following President Bill Clinton’s impeachment, “A textual interpretation of
the Pardon Clause provides the strongest argument that a self-pardon is not
prohibited by the Constitution.”
Some legal experts have said a self-pardon would be
unconstitutional because it violates the basic principle that nobody should be
the judge in his or her own case. Consider a trial judge being accused of a
crime and then presiding over her own trial. As ridiculous as that sounds, it
may be fundamentally more fair than a president pardoning himself. At least,
the state has a chance of convicting the judge/defendant by convincing a jury
of her guilt.
In August 1974, four days before President Richard
Nixon resigned, Mary C. Lawton, then the acting head of the Justice
Department’s Office of Legal Counsel, issued a legal opinion stating that “it
would seem” that he (Nixon) could not pardon himself “under the fundamental
rule that no one may be a judge in his own case.”
Laurence Tribe, a Harvard Law School professor,
Richard Painter, a White House lawyer under President George W. Bush and Norman
Eisen, a White House lawyer under President Barack Obama all agreed with
Attorney Lawton.
The three of them wrote in the Washington Post in
2017, “The Constitution specifically bars the president from using the pardon
power to prevent his own impeachment or removal.” They continued, “It adds that
any official removed through impeachment remains fully subject to criminal
prosecution. That provision makes no sense if the president could pardon
himself.”
If Trump grants himself a pardon, he may still be in
jeopardy of criminal prosecution. Initially a self-pardon, if proper, will only
insulate him from federal prosecution. Trump faces two New York state inquiries
into whether he misled tax authorities, banks or business partners. Trump
cannot shield himself from state prosecution.
He could also face federal criminal prosecution. The
self-pardon is untested. The only way to test it is to arrest Trump, if there
is a basis to do so, after he leaves office. Trump can raise his self-pardon as
a defense to the prosecution. That challenge will come pretrial, after his
indictment, initial appearance, perp-walk, mug-shot, fingerprinting and
arraignment.
If the charges against the president are dismissed
look for an appeal by the Department of Justice. If the charges are not
dismissed a very public trial takes place and then, most assuredly, and appeal
if Trump is convicted.
A self-pardon by President Trump will be a winding,
time-consuming and expensive process that may ultimately make new law.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino
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