Can Trump Pardon Himself?

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Via Elizabeth Holtzman for WaPo

Can President Trump pardon himself? Can he pardon his close associates and family members?

These questions have begun to simmer as special counsel Robert S. Mueller III ramps up his investigation into whether the Trump campaign colluded with Russia in its interference with the 2016 presidential election. Mueller is also, undoubtedly, looking into whether the president obstructed justice by firing FBI Director James B. Comey. Jared Kushner, the president’s son-in-law, is reportedly under investigation as well.

So it’s a live question: Infuriated by these investigations, will the president try to short-circuit them by pardoning himself and others caught up in the Mueller investigations? And, if he did, would those pardons be valid?

The Constitution’s pardon provision gives the president the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Some argue that because the language is broad and there is no explicit prohibition, presidents may pardon themselves.

But this is simplistic and specious. Presidential self-pardoning would violate the basic structure of our Constitution, and the whole history of the pardon power strongly weighs against the concept.

Presidential power to pardon, including the impeachment exception, is directly modeled on the pardon power of the British monarch. Royal self-pardoning was inconceivable under the British system. Because British monarchs could commit no crime, they had no need to pardon themselves. Self-pardoning, therefore, was never part of the British pardon power – and was not incorporated into the U.S. version. There is no evidence the Constitution’s framers ever contemplated or supported a presidential self-pardoning power, as the debates during the constitutional convention make clear.

When presidential pardoning power was proposed at the convention, an amendment was offered to prevent a president from granting pardons in cases of treason. Supporters thought that would discourage presidents from committing treason. Opponents argued that was an unnecessary precaution, because if a president were “guilty” of treason, he could be “impeached and prosecuted.” The Constitution specifically provides for “indictment, trial . . . and punishment” of a president under the criminal laws, in addition to impeachment.

Implicit in the opponents’ argument was the view that a president could not have any power to pardon himself. Otherwise he could commit treason (or any other crime), pardon himself and then, except for being removed from office through impeachment, go scot-free. The power to self-pardon would thwart any criminal prosecution of the president and stymie full accountability.

At the constitutional convention, opponents of the amendment won. Their view that the president must be subject to prosecution rules out any presidential power of self-pardon. Because it prevailed then, that view must shape our interpretation of the Constitution today.

A presidential self-pardoning power would seriously undermine the rule of law. If presidents could self-pardon, they could engage in monstrously wrongful and criminal conduct with impunity. That would utterly violate the framers’ belief in a limited presidency and in the idea that no president is above the law.

James Madison said, “No man is allowed to be a judge in his own cause.” Self-pardoning presidents would be acting as their own judge and jury, which no one is permitted to do in our constitutional scheme. It would stand in jarring contrast to the rest of the Constitution.

Then there’s the matter of actual precedent. No president has ever decided to pardon himself, including Richard Nixon, George H.W. Bush and Bill Clinton, who all faced special prosecutors investigating their conduct. Self-pardoning would have been seen as a clear-cut admission of guilt, not to mention an outrage against the constitutional order. Further, if the pardons were challenged and invalidated, presidents would have the worst of both worlds – they would be open to prosecution, and their guilt would be widely believed.

So, if Trump pardoned himself, the pardon could be challenged in prosecution brought against him, and a court could, and likely would, invalidate it.

Although presidents may not pardon themselves, they may pardon their confederates in crime. But if these pardons are intended to shield a president from prosecution or otherwise facilitate committing a crime, the president could be impeached or prosecuted for granting such pardons. Remember, the Watergate burglars were offered presidential pardons for their silence. This formed one of the many charges against Nixon in the articles of impeachment voted by the House Judiciary Committee.

The Constitution treats the pardon power as it has generally been seen throughout history – as a way of injecting mercy into the justice system. It was never viewed as a vehicle for presidential abuse of power, which is what giving the president the power of self-pardon would be.