“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Trump tweeted on June 24, 2018, during Special Prosecutor Robert Mueller’s investigation.
Whether Trump can “grant a pardon” to himself will never be known unless the matter is adjudicated, but the question has sparked a lively debate among Constitutional law professors who have written new papers on the topic.
Article II, Section 2, of the Constitution states the President “shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment.”
Reluctance to Prosecute
University of Missouri Law Professor Frank Bowman told Blog for Arizona that “Biden’s Justice Department is going to be very reluctant to bring charges against the former President.
“We should try to avoid these situations because there are several kinds of risks, “Bowman said.
“Prosecuting one’s predecessor can lead to a misuse of criminal law and retribution. If people in power fear that losing power may result in being prosecuted, they have an incentive to try to stay in power by whatever means necessary.
“President-elect Biden has taken the right tone, which is that he’s going to put competent, ethical people in the Justice Department and let them do their jobs,” Bowman said in a telephone interview.
Granting Oneself a Pardon
Bowman writes in a recent paper on presidential pardon power, that the Framers intended no such thing as “granting” a pardon to oneself, as the word “grant” involves another person.
Trump critic Harvard Law Professor Laurence Tribe told MSNBC’s Lawrence O’Donnell that if Trump could pardon himself, he could “Shoot someone on 5th Ave and get away with it,” as Trump has bragged about doing.
Tribe noted that while Article 3, Section 2 of the Constitution says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” the very next section of Article II (Section 3) says explicitly that the president “shall take care that the laws be faithfully executed.”
“We have to look at Section 3, which says the President must faithfully execute the law, and treat that that as limiting what Section 2 says,” Tribe told O’Donnell.
The Constitution has lots of powers that don’t contain their own limits within their four corners. Still, you have to look at the whole Constitution and its history and the history of the American Revolution to see what it means, Tribe explained.
“We know the Framers didn’t bother saying the President cannot grant himself a pardon, as no one in their right mind ever imagined otherwise.
Not immune to criminal laws
“The Framers talked in the Constitutional Convention and the Federalist Papers about the dangers that the President might pardon his cronies. They concluded they would not put any language in the pardon power itself to prevent that.
“But there wasn’t a whisper of suggestion that the President could make himself immune to the criminal laws of the United States.”
On the contrary, Tribe said, the Framers had just fought a revolution in the wake of George III exercising extraordinary power. Still, even he did not have the power to murder and get away with it.
Tribe added The Magna Carta, a model for Democracy, stated in the year 1215 that no one is above the law.
Scalia Championed Seeking Original Meaning
Eric L. Muller, Professor of Law at the University of North Carolina, writes in The Atlantic, “The question shouldn’t be whether the president can pardon himself but whether he can grant himself a pardon—and those are not the same thing.”
The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s original public meaning.
“That, theoretically, is the meaning that ordinary English speakers of the late 18th century would have attached to a given term when coming upon it in a legal document like the Constitution,” Muller wrote.
The Word “Texting”
People today have an easy way to search vast amounts of such material in the form of the Google Books Ngram Viewer.
“This extraordinary bit of technology allows a user to pick a beginning and an end date and request a calculation of the frequency with which words and phrases appear in all of Google’s scanned written material from that time period.”
‘This tool can reveal, for example, that the word texting got almost no use across the 20th century until 1997, when, for reasons everyone can infer, it began to skyrocket.
“According to the Ngram Viewer, did English speakers in the late 18th century understand the verb grant to have a reflexive meaning? “Muller asks.
“In their world, could you grant something to yourself? If you could, evidence of that in the form of phrases such as grants himself and grants herself and grant themselves and grant myself and grant yourself should appear throughout the Ngram Viewer’s corpus.
“…But, in the time period from 1750 to 1800, essentially none of these appears,” Muller concludes.
Yes, Trump Can Pardon Himself
Professor John Yoo, best known for authoring the Torture Memos, which provided a legal rationale for the torture of detainees after the Sept. 11 attack, writes in The right-wing National Review, “Yes, Trump can pardon himself and his family. That doesn’t mean he should.”
Yoo is a visiting professor at the conservative American Enterprise Institute. He stated that “speculation about pardon activity at the White House is churning furiously. “
“Politico reports preemptive pardons for as many as 20 aides and associates are under consideration. Trump apparently fears that the Biden Administration may prosecute him and his family.
Trump supporters have stoked this concern. “If Biden ever became president, I’d tell Trump pardon yourself and pardon your family,” Sean Hannity said on his Fox News show.
Yoo said these pardons, even one for the President himself, would not violate the Constitution.
“But they would set a terrible political precedent that would long tarnish Trump’s legacy—especially if he wants to play kingmaker in the Republican Party or even run again in 2024.”
“Presidents have used their Federal pardon power before prosecutors have charged them, while trials have been ongoing, or even long after conviction and sentencing,” Yoo explains.
In Seasons of Insurrection or Rebellion
Yoo writes that Alexander Hamilton wrote in Federalist Paper No. 74, the Constitution creates a pardon power “out of humanity and good policy” to allow for “mitigation from the rigour of the law.” As a result, it should be “as little as possible fettered or embarrassed.”
“In seasons of insurrection or rebellion, there are often critical moments, when a well-timed pardon to the insurgents or rebels may restore the tranquility of the commonwealth,” Hamilton wrote
…. The benefits of such a power, Hamilton believed, outweighed the possibilities that a future president might use pardons to corruptly benefit himself.”
Yoo concluded in his paper that “even though Trump’s possible pardons surely would renew concerns of presidential self-dealing, it is not worth the permanent harm to the presidency to try to stop them.”
The Nixon Pardon
The only modern-day pardon precedent is a brief Nixon Justice Department finding that Nixon cannot pardon himself. But he could invoke the 25th Amendment, temporarily stepping down from office, securing a pardon from Vice President Gerald Ford, and resuming office, with a pardon in hand.
The pardon power does not apply to the states.
New York purposely changed its double-jeopardy law for the express purpose of prosecuting Donald Trump.
Therefore, Trump cannot be pardoned in Manhattan District Attorney’s Cyrus Vance, Jr’s, case, alleging:
- Trump paid former lawyer Michael Cohen illegal campaign funds to hush up his affairs with Stormy Daniels and Karen McDougal
- Tax fraud.
- Bilking people out of an education at Trump University.
Trump’s pardon would not include civil suits such as his niece Mary Trump’s case against her uncle and his siblings for cutting her out of her grandfather’s will.
Neither would a Federal pardon grant Trump immunity against the rape case brought against him E Jean Carrol after allegedly raped her in Bergdorf Goodman’s dressing room. She says her Donna Karan dress has been hanging in her closet for 20 years with Trump’s DNA on it,
She’s demanding Trump take a DNA test.
What is more, no future charges leveled against citizen Trump after January 20, 2021, would qualify for a pardon, as there is nothing in the Constitution that keeps a former President from being indicted.
For example, if Trump should leak highly-classified information, as he did in 2017 when he told Russia’s foreign minister and ambassador about Israel’s mission against ISIS, that would constitute espionage,” Tribe told MSBC’s Joy Reid.
We can’t reach out and see what Trump is going to do in the future, but his most valuable resource is the national security information he holds, “if he can remember it,” Tribe concludes.
The obvious question is , if presidents cannot pardon themselves at all, why add the phrase “except in cases of impeachment?” That seems to suggest that if the pardon does not involve impeachment, it is legal. Not that I am saying self-pardon is a good idea.