Donald Trump Cannot Pardon Himself – Sorry.

Pardon

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By Laurence H. Tribe, Richard Painter and Norman Eisen for WaPo

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.

The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.

Other equitable considerations could also weigh in favor of leniency. A president might choose to grant a pardon before prosecution of a person when the president believes that the prosecution is not in the national interest; President Gerald Ford pardoned Nixon in part for this reason.

Or a president may conclude that even if a person may have committed a crime, he was acting in good faith to protect the national interest; President George H.W. Bush pardoned former defense secretary Casper Weinberger in the Iran-contra affair in part for this reason.

In all such instances, however, the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

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.

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.

President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.

But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.

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4 thoughts on “Donald Trump Cannot Pardon Himself – Sorry.

  1. “When the president does it, that means it is not illegal.” So uttered the constitutional violator and scholar, Richard Nixon. And so, we are back to the same dark hole.

    So, if on April 2, 2014, Trump committed six federal felonies unrelated to his campaign and on July 22, 2014, Trump committed four federal felonies related to his campaign, he can pardon himself for those crimes when he later became president? The founders intended to give a president a get out jail free card? Even if those crimes are unrelated to crimes committed during his presidency? So, assume Trump had committed federal crimes for the last 15 years, many of them falling within the statute of limitations, and his reason for running for president may have included immunizing himself, family and friends for all his past federal crimes, that’s going to be upheld by the courts?

    A self-pardoning President is anathema to that which the founders of the constitution intended to establish, i.e., a democracy versus a monarchy, where the sovereign King of England was immune from criminal prosecution. As then Supreme Court Justice nominee, Judge Neil Gorsuch testified to the Senate Judiciary Committee: “Not even the President is above the law.” The proposition that a President can, by his own hand, make himself above the law, and beyond the reach of the criminal laws of the United States of America, under and by which he serves is laughable and ludicrous.

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  2. Actually, the mere fact that rational people are even discussing the topic of a self-pardoning President – tells just how far down the authoritarian rabbit hole – Donald J. Trump has take this countries legal system already. Not to mention the legal and Constitutional ignorance of the man a minority elected President. Put all this in the context of the current investigations into Trump’s Presidential campaign collusion with an enemy state – and we are long past – rational discussions and we are deep enough in the rabbit hole where little daylight can still penetrate.

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  3. We are allowing him to get away with it…… we are following “procedures” and he is not even behaving as a rational adult! His GOP “barrier” has him protected and due to “rules” we cannot force them to take the steps required to begin removal actions. They are abetting him and allowing the disintegration to gain momentum. The longer it goes on, the more difficult it will be to stop and protect our democracy.

    – Murphy

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