Donald Trump self-pardon constitutionality in question as left-leaning prosecutors loom


Washington is abuzz with talk that President Trump may spend his last days in office on a pardon spree, preemptively absolving everyone including close associates, family members and even himself.

The pardon is one of the most potent powers invested in a president, and it includes the ability to issue broad and preemptive pardons. It has two limitations: it appears to apply to only federal crimes, not state charges; and it covers alleged crimes committed before the pardon was issued, even if the investigation hasn’t begun. In other words, a pardon cannot apply to future conduct.

Whether presidents have the authority to pardon themselves, however, remains a legal gray area. The Constitution is vague on the issue and it has never been resolved by the courts.

A nonbinding 1974 opinion from the Justice Department’s Office of Legal Counsel, issued just days before President Nixon resigned, says it “would seem” a president cannot pardon himself. Yet that opinion is less than a paragraph and carries no real legal force.

Legal analysts say a self-pardon would run afoul of the Constitution, citing the Founding Fathers’ efforts to limit presidential pardon powers.

The Constitution’s pardon provisions are extremely broad, but there are other places in the document to glean the framers’ thinking.

One place is the provision on impeachment and removal, which states that a president can be charged with a crime after he leaves office.

“I think it is persuasive that the [impeachment and removal] clause, in particular, suggests that the framers didn’t contemplate that a self-pardon would be viable because if a president could pardon himself that clause wouldn’t make much sense,” said Ross Garber, who teaches political investigations and impeachment at Tulane University School of Law.

A self-pardon conceivably would keep Mr. Trump out of legal jeopardy after President-elect Joseph R. Biden takes over Jan. 20. Left-leaning prosecutors are already salivating over Mr. Trump losing the protections of the presidency.

The president has floated the idea of a self-pardon as far back as 2018.

“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?” he tweeted.

If Mr. Trump did attempt to pardon himself, it likely would stand — at least for a little while.

The pardon would hold until he raised it as a defense in a court of law to challenge possible criminal charges or quash a subpoena. That would force the courts to resolve the issue.

“It would take a Biden Justice Department to initiate some sort of action by way of action or prosecution of the president for the courts to weigh on the validity of a self-pardon if Trump decides to do that,” Mr. Garber said.

Frank O. Bowman III, a professor at the University of Missouri Law School, agrees that a self-pardon would be invalid, but said the constitutional vagueness on the issue could create a legal loophole for Mr. Trump if he does grant himself clemency.

“The argument that a president can self-pardon because the text of the Constitution doesn’t explicitly prohibit it is plausible, but not terribly convincing,” he said. “If you look at the debates at the Constitutional Convention in Philadelphia, it is pretty clear the framers didn’t think the self-pardon was possible.”

Bulletproof pardon

Still, Mr. Trump could pursue some legal avenues to receive a bulletproof pardon from federal investigations.

One such method would be to resign and have Vice President Mike Pence pardon him. A similar scenario occurred after Nixon’s resignation, when he was immediately pardoned by President Ford.

Another, murkier path, would be for Mr. Trump to invoke the 25th Amendment and declare himself incapacitated. That would temporarily transfer all the power of the presidency — including the ability to issue pardons — to Mr. Pence, who could then grant Mr. Trump clemency. Then Mr. Trump could resign or return to his duties.

The 1974 OLC opinion says that action would be acceptable, and constitutional scholars agree it would withstand legal challenges.

“A straight-up resignation is simpler, but whether either happens at all likely depends on the psychology of Trump and Pence as much as it does on the Constitution,” Mr. Bowman said.

If Mr. Trump briefly invoked the 25th Amendment and then returned to office, it is unlikely anyone would insist on a medical examination to validate his claim, Mr. Bowman said. And if someone did, it likely would be too late because Mr. Trump would have left office.

Although Mr. Trump has the authority to issue himself a broad pardon, it would protect himself against only federal prosecution. He could still be subject to state criminal charges.

Manhattan District Attorney Cy Vance and New York Attorney General Letitia James both have tax fraud investigations into Mr. Trump, his family and the Trump Organization.

Mr. Trump’s children have not been accused of criminal wrongdoing, but in a sign of possible legal perils, the president’s son Eric was deposed in October as part of the New York attorney general’s investigation.

The involvement of Mr. Trump’s family in his business raises questions about whether a president has the power to pardon family members. Mr. Trump has already asked advisers about “preemptively” pardoning his three eldest children, The New York Times has reported.

Legal scholars say such a pardon would be valid under the Constitution. In 2001, President Clinton pardoned his brother Roger, who was convicted for cocaine possession in Arkansas.

“There is nothing inherently improper about a family member pardon,” Mr. Garber said. “It’s possible that a president’s family member could be wholly deserving of a pardon.”

Admission of guilt

As Mr. Trump eyes another presidential run in 2024, some voters may look at pardons as at least a tacit admission of guilt.

However, a Supreme Court decision in 1915 concluded that pardons are “noncommittal” on guilt, tantamount to silence. The issue arose when prosecutors offered a pardon to a criminally charged witness and the individual rejected it, insisting he wasn’t guilty.

Legal scholars have debated the merits of that opinion for nearly 100 years. In another case, a U.S. appeals court concluded that acceptance of clemency is “at least admission enough.”

Mr. Bowman said the admission of guilt is one area where public perception and legal precedent may diverge.

“The common understanding is that you are guilty, otherwise why do you need a pardon,” he said. “But it is a widespread misconception that accepting a pardon means a confession of guilt. It is perfectly possible to pardon someone who is not guilty.”

Since pardons are not viewed as an admission of guilt, it makes a preemptive pardon legally acceptable.

National unity

The first presidential pardon — by George Washington in 1791 — was issued to a group of whisky distillers who tarred and feathered tax collectors in protest of a tax on their product.

Mr. Washington spared the group after two were convicted, in a show of national unity.

The issue arose again nearly two centuries later when Mr. Ford pardoned Mr. Nixon with questions swirling over whether the recently resigned president would be prosecuted. Again, Mr. Ford cited national unity as a reason for the preemptive pardon.

And President Carter preemptively pardoned draft dodgers who fled to Canada during the Vietnam War, before they had been criminally charged for their actions.

The Carter and Ford pardons were publicly unpopular and both presidents faced a backlash from both parties.

Pre-emptive pardons are usually broad, which is also legal under the Constitution. Mr. Trump last month issued an extremely broad pardon of his former national security adviser, Michael Flynn.

The judge overseeing the Flynn case in a lengthy opinion criticized the reprieve as too broad but also acknowledged that he did not have the authority to challenge it.

“Historically, pardons have been executed in a very, very broad way,” Mr. Garber said. “Take a look at the pardon Ford issued Nixon or the language employed in the Flynn pardon, both are very broad. A broad pardon is a valid pardon.”

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