As outgoing President Donald Trump’s term in office comes to an end, some media outlets have been reporting that Trump has the power to pardon himself. They are wrong.
In a matter of weeks, the nightmare of Trump’s reign in the White House will be over when President-Elect Joe Biden takes the oath of office on Inauguration Day. At that moment, the new Attorney General and an army of federal prosecutors may take action against Trump for all the possible crimes he may have committed while in office, including crimes against humanity, campaign finance felonies, election interference, extortion, federal tax fraud, obstruction of justice, destruction of presidential documents, negligent homicide, and more.
Americans have been bracing themselves for the potential wave of pardons Trump may be preparing to issue for his associates, his children, and even himself in the wake of his election loss, especially after he pardoned disgraced former National Security Advisor Michael Flynn. But does he have the power to pardon himself as some outlets are claiming?
Trump certainly thinks so. In the midst of the Russia investigation by Special Counsel Robert Mueller, Trump declared on Twitter that he has “the absolute right” to pardon himself.
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? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
The problem is that he really doesn’t, and any media outlet or public official that suggests otherwise is being as reckless and incompetent as Trump’s response to the coronavirus pandemic.
Constitutional legal scholar and Harvard Law professor Lawrence Tribe, in a Washington Post op-ed written with former Bush ethics lawyer Richard Painter and Obama ethics lawyer Norman Eisen, thoroughly debunked the idea that a president can issue a self-pardon.
“The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects,” the trio wrote. “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.”
Speaking of deposed kings, Attorney General Bill Barr recently compared Trump to a deposed king in response to being attacked by him all day on Saturday for not supporting his dubious election fraud allegations.
Tribe, Painter, and Eisen went on to point out that the idea of a self-pardon has been rejected for hundreds of years going back well before America was even a British colony. Even the Constitution repeatedly rejects the idea that someone can be their own judge.
The Constitution embodies this broad precept against self-dealing in its rule that congressional pay increases cannot take effect during the Congress that enacted them, in its prohibition against using official power to gain favors from foreign states and even in its provision that the chief justice, not the vice president, is to preside when the Senate conducts an impeachment trial of the president.
It should be pointed out that Congress did pass articles of impeachment against Trump for soliciting foreign interference in the 2020 Election when he tried to extort Ukraine into opening a sham investigation against his political rivals. Congress also charged Trump with obstruction of Congress. The Senate may have acquitted Trump in a rigged trial, but the he could still be indicted for the crimes, and they are not covered by the pardon power because cases of impeachment are exempt. In short, the very fact that he was impeached for these crimes makes them unpardonable.
Trump also cannot pardon state crimes, and New York prosecutors are currently building quite a case against him, which may be why Trump and his kids are looking to flee to Florida once he leaves office.
Finally, just as Trump and his cronies have been citing a 1973 Justice Department memo saying the president cannot be indicted while in office, there’s a 1974 memo that says the president cannot pardon himself.
Written by Assistant Attorney General Mary C. Lawton in the Office of Legal Counsel just days before former President Richard Nixon resigned, the memo specifically states:
Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. 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.
Therefore, Trump does not have the power to pardon himself. He cannot use one Justice Department memo to protect himself from indictment and then ignore another memo to pardon himself. In fact, if Trump did try to pardon himself and his family members he would be admitting that crimes were committed. And since he can’t pardon himself, federal prosecutors could potentially use the attempt as an admission of guilt.
None of us can be our own judge or jury in our own case, because none of us would find ourselves guilty. No one is above the law, and that includes the president, no matter what he or anyone else thinks.
Featured Image: Screenshot