This morning the cable news talkers are predictably up in arms over the question of whether or not President Trump could write himself a pardon, despite a complete lack of any indication that he’s even considering it. While the argument will most likely remain entirely hypothetical, it’s bringing out the usual legions of legal minds who are, in some cases, definitively stating that presidents either can or can’t do this.
Our own Taylor Millard weighed in on the subject yesterday, summoning up his own collection of references to declare that such a thing wouldn’t be possible. Taylor based his conclusion on Article II, Section 2, an AG opinion offered to Richard Nixon in 1974 and the somewhat dubious take of Lawrence Tribe.
Ashley Parker at the Washington Post offers up some pro and con examples of people who seem to believe they know the answer to this one.
The question of whether a president can self-pardon has long been a “parlor game” among constitutional scholars, [Jonathan] Turley said. There’s no precedent for it and thus no case law. Turley said he believes a president can pardon himself — but added that would not protect a president from impeachment.
“A president cannot pardon out of an impeachment,” Turley said. Congress, he said, “can use his pardon as an abuse of his office.”
Ethan Leib, a professor at Fordham Law School, said he believes a president can’t self-pardon because that violates the oath of office — in which the president swears to “faithfully execute” his duties — and the stipulation in Article II of the Constitution that the president “shall take care that the laws be faithfully executed.”
“The Constitution is clearly prohibiting the president from engaging in self-dealing,” Leib said.
As far as I can tell, this is yet another “open question” because, as Turley pointed out, there is no case law so there is no precedent to draw upon. But we surely have enough clues to say that case against the President being able to do it has some holes in it you could drive a truck through. Article II, Section 2 provides no exceptions to the power of the pardon other than to say it can’t be used to prevent the impeachment of an elected official. But if a president or governor is in that much trouble, they might be far more interested in avoiding criminal prosecution after leaving office. In that sense, the president could probably pardon his or her self and immediately resign from office. You can’t impeach an ex-president and having been pardoned, you couldn’t take them to court on federal charges.
Ethan Leib’s argument is as gauzy and ill-defined as Lawrence Tribe’s. They both speak in glowing generalities of how heads of state have never attempted a self-pardon. Leib bases his complaint on the president having taken an oath to “faithfully execute his duties” and to ensure that “the laws be faithfully executed.” But here’s the thing: pardons are baked into the cake as part of the legal system. Issuing them is a documented part of executing the duties of the office and the faithful execution of the law already recognizes that you can’t prosecute the pardoned.
The Supreme Court hasn’t had a lot to say on the subject, but what little there is to be found doesn’t bode well for those in the no he can’t camp. I might have missed a later one, but the last time I see the Supremes tackling the subject of limiting the power of granting pardons and commutations was in Ex Parte Grossman in 1925. That dealt with the removal of a jail sentence (while leaving in place a fine) for someone repeatedly found to be selling liquor during prohibition. The court once again found no reason to place limits on the pardon powers of the President.
But in the end, even if the President did pardon himself, who is going to do anything about it? I was pondering this last night, discussing it with some friends on Twitter, and my first question was who would have standing to challenge the President in court? That brought some interesting responses. Failing that, how would anyone go about “reversing” the pardon once it was granted? Will Congress pass a law stating that he can’t do it and bring enough votes to sustain a veto? Even if they did it would be passed after the fact so they’d have to try to make it retroactive. Ex post facto laws are expressly forbidden by Article 1, Section 9 so that’s a constitutional no-no, and it would likely be shot down by the Supreme Court in a challenge anyway.
Or perhaps someone would ask the Supreme Court to directly step in and rule this specific pardon invalid? That means they would have to rule that there actually are limits on presidential pardons. Oh, boy. That opens up an entirely new can of worms which I highly doubt the current court would touch with a ten-foot cattle prod.
Again, this remains an “open question” until such time as some president or governor attempts to pardon themselves. But to say it can’t be done seems like an unsupportable argument, at least for now. So what does the President think about it? He seems to agree.