The Detroit Post
Wednesday, 20 October, 2021

Trump Pardon Himself

Bob Roberts
• Wednesday, 23 December, 2020
• 7 min read

The contents of this site are ©2021 Capitol Hill Publishing Corp., a subsidiary of News Communications, Inc. This question has been percolating since at least 2018 when the special counsel investigation on Russian election interference was well underway and some of Trump's closest aides, including former campaign chairman Paul Manafort and former national security adviser Michael Flynn, had been indicted.

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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.

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.

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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. There, the U.S. Supreme Court upheld a pardon issued to Augustus Hill Garland, a former Arkansas senator in the Confederate States of America.

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The Supreme Court ruled in Garland’s favor and held that the presidential pardon power “extends to every (federal) offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The language in the Garland case should put an end to speculation about the legal validity of prophylactic pardons, as should our collective memories.

If the president pardons for crimes not yet charged, is he exercising powers that the framers never understood that they were giving him? 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.

But even assuming for the sake of argument that a self- pardon is constitutional, it would not cover two things: criminal violations of state or local laws, and offenses for which he was impeached. But recall, too, that over 1,000 former prosecutors signed their names to a statement in 2019 concluding that the 448-page report of former Special Counsel Robert Mueller contained ample evidence to warrant an indictment of Trump on obstruction of justice if he were a private citizen.

Of course, the political backlash of a Trump indictment arising from the Russia investigation would be swift and severe. But it would be the only way to tee up before a court two vital questions regarding the scope of presidential power: whether, as head of the executive branch, a president can have the intention to obstruct justice if he is ultimately in charge of DOJ itself, and whether a self- pardon is constitutional.


By the express terms of the Constitution, he cannot self- pardon for the abuse of office and obstruction of Congress charges. Section 1505 of the same federal statute criminalizing obstruction of justice states that “Whoever corruptly.

To be sure, the language authorizing a presidential indictment appears in the part of the Constitution establishing the Senate's role in conviction on impeachment charges. Despite the comings and goings of scholarly debates over the vastness of presidential powers, one thing is for certain: The Constitution's Framers were done with kings.

On Wednesday, Trump retweeted a post from GOP Rep. Matt Gaeta, which said that the president should pardon “everyone from himself, to his admin, to Joe Exotic if he has to.” 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. Trump has not been charged with any crimes, but faces at least nine possible lawsuits after leaving office, including a criminal probe into his business activities by Manhattan Attorney General Cyrus Vance.

Harvard University law professor Mark Tush net told Vox in 2018: “A self- pardon for ordinary criminal offenses does not fall within that exception, on my understanding.” 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.


Jeffrey Crater, a former federal prosecutor who served 12 years at the Justice Department, told Business Insider in 2018 that the Supreme Court would likely deem a presidential self- pardon unconstitutional. 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.

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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