President Donald Trump’s personal attorney Rudy Giuliani dropped a bit of a bombshell during an interview on This Week with George Stephanopoulos by saying Trump could pardon himself (even if he has no plans to).
GIULIANI: He — he’s not but he probably does. He has no intention of pardoning himself but he probably — not to say he can’t. I mean, that — that’s another really interesting constitutional argument, can the president pardon himself.
STEPHANOPOULOS: Do you think it’s an open question?
GIULIANI: It would be an open question. I think it would probably get answered by gosh, that’s what the constitution says and if you want to change it, change it. But yes.
Giuliani is quick to note there would be plenty of political ramifications if Trump decided to go ahead and give himself a ‘Get Out of Jail Free’ card.
Pardoning other people is one thing, pardoning yourself is another. Other presidents have pardoned people in circumstances like this both in their administration and sometimes the next president, even of a different party will come along and pardon.
It’s pretty interesting watching Giuliani go from an almost jocular tone of mentioning the “interesting constitutional argument, can the president pardon himself,” then getting pretty serious when discussing the ramifications. It’s almost like he’s trying to just laugh the pardoning situation off, then realized how serious the situation really would become if Trump tried to issue a pardon for himself.
The big question is whether Giuliani is correct in his belief Trump could exempt himself from prosecution. The answer: probably not. Here’s what the Constitution says in Article II, Section 2.
[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
The Justice Department looked into the issue in 1974 with Acting Assistant Attorney General Office of Legal Counsel Mary C. Lawton telling then-President Richard Nixon there’s no way it could happen.
Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.
The necessity doctrine would not appear applicable here. That doctrine deals with the situation in which the sole or all judges or officials who have jurisdiction to decide a case are disqualified because they belong to a class of persons who have some interest in the outcome of the litigation, thus depriving the citizen of a forum to have his case decided. In that situation the disqualification rule is frequently relaxed to avoid a denial of justice. It is, however, extremely questionable whether that doctrine is pertinent where the deciding official himself would be directly and exclusively affected by his official act.
A little bit of a historical perspective was given in a 2017 op-ed in The Washington Post by Laurence H. Tribe, Richard Painter and Norman Eisen. Tribe is a Harvard professor while Painter and Eisen are former White House ethics lawyers.
The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.
We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.
It should also be pointed out Trump likely couldn’t pardon himself if anything damaging came out of the Russian probe because the investigation results would probably result in Congress starting impeachment hearings (see the aforementioned Constitution’s comments on “except in Cases of Impeachment”). It’s also very doubtful Trump could have any self-pardon locked up in a White House or Trump Tower safe for the same reason as issuing a pardon after anything damaging came out.
I have serious doubts Trump colluded with Russia or Russia had any real influence in the election, for the record, but I also support the investigation because I think it’s worth looking into the allegations. It’s not worth $17M, and there are definitely major concerns about the power of federal law enforcement and special counsels in the way they act. I also think this investigation would wrap up a lot sooner if people would just take the 5th because it’s not an admission of guilt but just saying, “I don’t want to be a witness against myself.” I’d do the same thing if any government agency took me in for questioning, and I advise anyone else to do the same.
Of course, any decision to take the 5th would probably result in political fallout, and all we care about these days is winning elections so any decision to follow the Constitution is just chaff to be ignored. Which is just a wee bit frustrating.