The Detroit Post
Wednesday, 01 December, 2021

How Can Trump Pardon Himself

Maria Johnson
• Wednesday, 28 October, 2020
• 8 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.


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. 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. 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.

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Trump is preparing for the first presidential debate with former Vice President and Democratic Nominee Joe Biden on September 29th in Cleveland, Ohio. (Photo by Joshua Roberts/Getty Images) But then, also this week, The New York Times reports that Rudy Giuliani, Trump ’s personal lawyer (who is under federal investigation) also discussed the possibility of a preemptive pardon from his boss.

Traditionally, most pardons are granted after a conviction and a five-year waiting period before someone applies for one. And especially for pardons of their own cronies and friends, or for political purposes, Presidents don’t wait at all.

Presidents indeed don’t need to wait for a conviction to issue a blanket pardon for someone, according to the 1866 case Ex Part Garland, which was decided based on Andrew Johnson’s pardon of a former confederate soldier. Jimmy Carter pardoned thousands who illegally avoided the draft during the Vietnam War, and all the way back to the first presidential administration, George Washington pardoned leaders of the Whiskey Rebellion to prevent their prosecution.

And issuing a pardon for Giuliani or his kids has one drawback: it’s a clear admission they committed a crime. That’s not something I think Trump wants to do, but then again, he’s not a very smart man, and he’s surrounded by other people who are not in touch with reality so … maybe he’ll do it anyway.

That would mean Rudy Giuliani, who is under investigation for corruption tied to Russia and Ukraine that was directly linked to Trump ’s impeachment. Also, The Washington Post argues, a pardon is a transaction between two parties, and thus Trump can no more pardon himself as he can buy a house from himself.

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We only have fifty days left in this cursed presidency, and it’s infuriating to think that there’s a good chance of Trump abusing his powers on the way out in a way that will shield evil-doers from consequences. Microsoft may earn an Affiliate Commission if you purchase something through recommended links in this article.

He already faces criminal jeopardy on multiple fronts: The U.S. attorney for the Southern District of New York is in possession of evidence of a potential campaign finance violation that Trump may have committed before he became president. Special counsel Robert S. Mueller III compiled evidence of multiple instances of obstruction of justice, outlined in his 2019 report.

And Trump ’s call last weekend to Georgia Secretary of State Brad Raffensperger provides at least a basis to investigate possible violations of federal law against election fraud. Until now, Trump has been protected from prosecution largely because of a 1973 Justice Department memorandum that prohibits indicting a sitting president.

The only person directly affected by the validity of a self- pardon would be Trump, and he would assert it as a defense only if the Justice Department charged him with a federal crime. Imagine a previous president, like George W. Bush or Barack Obama, randomly pardoning himself at the end of his term, despite not having committed any obvious crimes.

It would be unseemly, and inappropriate, for an attorney general to go on a fishing expedition to “find” a crime to charge, just to test a legal proposition. Trump is basically the perfect test case for a self- pardon, and by granting one to himself, he would place the feather on the scale in favor of his prosecution.

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Ask the average person on the street whether they could fairly and without bias decide their own guilt or innocence, and the honest among them should say no. It's hard to know exactly what federal crimes Trump might be worried about (pardons don't apply to state prosecutions).

For instance, if Trump knowingly and willfully attempted tried “deprive or defraud the residents of a State of a fair and impartially conducted election process,” by obtaining or counting ballots that he knew are “materially false, fictitious, or fraudulent,” then he could be guilty of a federal crime. But the solution to this lack of clarity isn't to pass another law limiting the president's pardon power.

Back to the issue of constitutionality: The Constitution provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” And if the founders decided not to create an exception for self-pardons, some have argued, it is improper and incorrect to read one into the text.

Then there's the question of equality, and the American justice system decrees that no one is above the law. Instead, during the Biden administration, a federal prosecutor would have to charge Trump with crimes falling within the scope of the pardon.

This is the chain of events that would tee up the legal question about a president's power to self- pardon. The Justice Department under President Joe Biden may not have an appetite for this politically charged experiment.

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The answer is to elect presidents who don't push us, over and over again, to the brink of constitutional crises. And presidents shouldn't engage in behavior that pushes the Constitution to its breaking point.

Jessica Levinson, a professor at Loyola Law School, is the host of the Passing Judgment podcast. She is also the director of the Public Service Institute at Loyola Law School, co-director of Loyola's Journalist Law School and former president of the Los Angeles Ethics Commission.

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