The Detroit Post
Wednesday, 20 October, 2021

Can Donald Trump Pardon Himself

Earl Hamilton
• Friday, 01 January, 2021
• 5 min read

Laurence Tribe, a Harvard Law School constitutional professor; Richard Painter, a White House ethics lawyer under President George W. Bush; and Norman Risen, a White House ethics lawyer under President Barack Obama agreed with Justice Department guidelines. They said that the Constitution gives the president the power to act as a judge in another person's criminal case as he sees fit.

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“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment or removal,” they wrote in a 2017 Washington Post op-ed. A president might also avoid taking such action for political reasons, Brian Salt, a law professor at Michigan State University, wrote in 1996.

But John Yew, a former Justice Department official under George W. Bush, argued that the president's pardon powers are absolute. Jonathan Turkey, a law professor at George Washington University, argued the Constitution does not bar presidents from pardoning whomever they want.

The Supreme Court held in 1866 that a president can issue pardons “at any time after” an offense is committed, “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” On Tuesday, the New York Times reported that Trump's personal lawyer Rudy Giuliani discussed a possible preemptive pardon that would shield him from the prospect of federal criminal charges arising from his work as the president's aggressive defender-in-chief.

Federal investigators in New York have been examining Giuliani's business dealings with two men who were indicted last year on campaign finance violations. Ukrainian-born LEV Paras and Igor Truman of Belarus are accused of conspiring to circumvent federal campaign finance laws by funneling foreign money to U.S. political candidates in a scheme to buy influence.

President Gerald Ford pardoned his predecessor, Nixon, for any crimes he might have committed related to the Watergate scandal. President Jimmy Carter preemptively pardoned hundreds of thousands of men who avoided the draft during the Vietnam War.

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Bush pardoned former Defense Secretary Caspar Weinberger and former CIA official Duane Carriage before they were tried on charges tied to the Iran-Contra scandal. And that the president, until that occurs, could change his mind, so I think the operative question here is going to be what constitutes delivery, and we don't have a Supreme Court opinion on exactly what that would be,” Dan Mobil, a law professor at Capital University in Ohio, told NPR in 2008, shortly after Bush reversed the pardon.

Trump's use of his clemency powers has drawn scrutiny because he has granted these to people with personal or political connections to him or in cases indirectly tied to him. And he has done so often without consulting with the Justice Department's Office of the Pardon Attorney, which traditionally advises the president on who qualifies for clemency.

He commuted the entire sentence of Roger Stone, a longtime ally who was convicted of lying to Congress for protecting Trump and his campaign from the Russia investigation. Yet, Mr. Trump, never one to be restrained by precedent, has let it be hinted that he might issue prophylactic pardons to relatives and colleagues who have neither been convicted nor charged with any crimes.

Article Two, Section 2, Clause 1, states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.” When unpacked, that broad language reveals that the president can only pardon for federal crimes, not for anyone’s impeachment, and he does not need the approval of anyone else in the government. Mr. Trump is the subject of a criminal investigation in New York City for alleged or potential violations of state laws.

As there has been little modern litigation over the validity and scope of individual pardons for federal offenses, there is little case law. What case law does exist broadly favors an expansive view of presidential pardon power.

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The language in the Garland case should put an end to speculation about the legal validity of prophylactic pardons, as should our collective memories. Professor Aaron Rappaport of Hastings College of the Law at the University of California, Berkeley, has argued that the original understanding of the pardon power was that it would be used only for crimes that had already been charged.

He should also pardon Julian Passage, who revealed the slaughter of innocent civilians and the cover-up by the U.S. military in Afghanistan, and Edward Snowden, who revealed that the feds have engaged in secret, unlawful and warrantless spying on hundreds of millions of innocent Americans. Passage and Snowden have been bitterly targeted and verbally savaged by the Deep State, but these heroes risked their lives and liberties, so we might know the truth about government lawbreaking.

• Andrew P. Napolitana, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. Mr Trump has already put his presidential pardon powers to use; in 2017, Mr Trump pardoned former Maricopa County Sheriff Joe Armies, who was charged and found guilty of being in contempt of court after refusing to cooperate with federal authorities attempting to make the law enforcement entity less racist.

There is no precedent for such an act, so its legal validity would ultimately be left up to a court to decide, assuming Mr Trump's attempt to do so would generate a lawsuit. Some legal experts have argued that a president pardoning themselves would be unconstitutional because it violates the idea that no one should act as the judge in their own case.

The raging political debate goes on If Trump wants a rationale to pardon himself, he can look no further than Weissmann, who was appointed as a top aide to special counsel Robert Mueller. Trump and numerous Republicans denounced him as a donor to Barack Obama, and he was said to have attended the election night party for Hillary Clinton in 2016.

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Weissmann was responsible for the overextension of an obstruction provision in a jury instruction that led the Supreme Court to reverse the conviction in the Arthur Andersen case in 2005. After he left the office of the special counsel, he fulfilled every account of someone with insane bias against Trump, including his book that attacks prosecutors for refusing to take on his extreme views.

Many of us called out the recent pardons by Trump, ranging from corrupt former members of Congress to the father of Jared Kushner. However, Weissmann insists that the pardon of figures tied to the special counsel investigation is evidence of obstruction.

Former campaign chairman Paul Manafort, for instance, served time in prison before he was released due concerns of the coronavirus. Former campaign aide George Papadopoulos and attorney Alex Van Her Warn served sentences.

Flynn was convicted and should have been sentenced years earlier if not for a series of bizarre actions by the federal judge who heard his case. It did not seem to have been obstruction that Bill Clinton notably pardoned his own friend and business partner in the Whitewater scandal.

Weissmann insists that, when Trump is out of office, there is no barrier to indict him for obstruction and have all these figures appear before grand juries. Not even a unanimous rejection of his views by the Supreme Court for the case of Andersen seems to register with him, particularly when the law stands in the way of pursuing Trump.

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He listed the alleged acts of obstruction discussed in the media but did not find the critical element of intent to support the charge. That was also the point that former Attorney General William Barr tried to make in his press conference on the summary of the special counsel investigation.

None of this matters to Weissmann, who comes across as a legal Captain Ahab, so blinded by rage that he would lay waste to the criminal code to nab his white whale. These critics demand prosecutions of Trump and his associates with the same blind fury as Captain Ahab, who said, “From heart of hell I stab at thee.

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