The Detroit Post
Wednesday, 20 October, 2021

Can Trump Legally Pardon Himself

James Lee
• Monday, 14 December, 2020
• 7 min read

In part, many believe that Trump's disproven claims of election fraud are just a ploy to run the clock that will eventually land him behind bars. According to Article II of the Constitution, a sitting president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That may sound like we have already answered the question; however, therein lies a small yet important technicality within that phrase that requires some unpacking.

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Every time the word appears, “grant” is a transmissive term meaning it is from one entity to another, reports The Atlantic. If a court were to base its judgment solely on the context of the word in the Constitution, it would be reasonable to determine that the president cannot, in fact, grant himself a pardon.

One of the most common legal interpretive methods, promoted by Justice Antonin Scalia and popularized among conservatives, is to look for a term’s “original public meaning.” This would involve looking at how everyday English speakers in the late 1700s would have understood the word should they have read it in a legal document. So based on context clues from the original document, legal dictionaries in use at the time, and the development of the English language in the last few centuries, the seemingly inconsequential word “grant” might have just kept us away from an even more complicated end to Trump ’s presidency.

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.

“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.

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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.

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.

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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.

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.

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• Andrew P. Napolitana, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. AFP via Getty Images Since Election Day, Trump has privately suggested he might attempt to pardon himself and quizzed his advisors on whether they think it’s a good idea, the Times reported, citing two unnamed sources.

This isn’t the first time the notion of a self- pardon has crossed Trump ’s mind: In 2018, he lashed out at federal investigators looking into his presidential campaign’s alleged ties with Russian actors by insisting he has the “absolute right” to pardon himself. “In a democracy based on the rule of law, no one may engage in criminal conduct with impunity, including the President of the United States,” University of Notre Dame Law Professor Jimmy Gurgle told Vox in 2017, arguing Trump cannot pardon himself.

In a 1974 opinion, the Department of Justice argued self-pardons aren’t allowed because “no one may be a judge in his own case,” but it offered a workaround. Some critics want Trump to face federal obstruction of justice charges over his handling of the Russia probe, and over the last few days, a few observers have called for investigations into his attempts to overturn election results in Georgia.

President-elect Joe Biden has said he will leave prosecuting decisions up to his Department of Justice, though NBC News reported he’s reluctant to launch politically sensitive investigations into Trump. Meanwhile, Trump is facing state-level tax and financial investigations in New York, a probe he cannot stop because his pardon power only applies to federal law.

The president has weighed pardons for allies like his adult children, his son-in-law Jared Kushner and Giuliani, the Times reported last month. I previously covered local news for the Boston Guardian, and I graduated from Tufts University in 2019.

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In time-honored style, President Donald Trump spent Thanksgiving Eve taking part in the annual presidential turkey pardoning ceremony in the White House Rose Garden. But speculation is already swirling around a potentially far more serious use to which Trump could put the power, following his decision to pardon former national security advisor Michael Flynn, who in 2017 pleaded guilty to lying to the FBI about his communications with Russia.

Tasks Katopodis/Getty But given that no president in US history has attempted to use the power to absolve himself, many lawyers think it's a move that would face serious legal challenges, and would likely end up before the Supreme Court. One is a 1915 Supreme Court ruling that some legal experts say means that an attempt to self- pardon for crimes constitutes an admission of guilt.

Ultimately, the fact that a self- pardon is an option being seriously discussed highlights the legal problems that Trump could face when he leaves office. No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges.

Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court. Talk of a potential pardon comes with Trump facing a swirl of investigations as he prepares to leave office, including New York State inquiries into whether he misled tax authorities, banks or business partners.

Mueller’s report laid out facts that federal prosecutors could potentially use as the basis for an obstruction of justice prosecution, though the odds of that are unclear. If prosecutors were to bring a case against Trump in spite of any pardon he grants himself, the issue could wind up in court and before a judge for the first time.


But, Tush net said, Trump ’s lawyers could conceivably try to invoke double-jeopardy arguments to claim that a federal pardon should bar any New York state prosecution based on the same conduct. But it would also spare Biden from having to face questions about a prosecution that would risk distracting from his political agenda and keeping Trump in the spotlight.

President Donald Trump listens to a reporter's question after awarding the Presidential Medal of Freedom, the highest civilian honor, to Olympic gold medalist and former University of Iowa wrestling coach Dan Gable in the Oval Office of the White House, Monday, Dec. 7, 2020, in Washington. President Donald Trump listens to a reporter's question after awarding the Presidential Medal of Freedom, the highest civilian honor, to Olympic gold medalist and former University of Iowa wrestling coach Dan Gable in the Oval Office of the White House, Monday, Dec. 7, 2020, in Washington.

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