Self-pardon tips from the Nixon endgame
Four days before he resigned the US presidency in August 1974, Richard Nixon received a legal memo that has become a hot topic inside Donald Trump’s White House 46 years later.
Its subject was whether Nixon, in disgrace and facing impeachment, could use his constitutional powers of pardon to protect himself from prosecution after he left office.
Its conclusion – that he could not – was based on common sense rather than legal precedent, because there was none.
However, the memo, written by Mary C Lawton at the Justice Department’s Office of Legal Counsel, also contained theories about presidential selfpardoning that have become the subject of Washington speculation as the Trump presidency draws to a reluctant and unpredictable close.
The president has far- reaching powers under Article II, Section 2 of the constitution ‘‘to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment’’.
This has given rise to a tradition of issuing pardons at the end of a presidential term – which has set numerous controversial but perfectly constitutional precedents for what may be about to unfold before Trump leaves office on January 20.
With Trump reported to be considering pre-emptive pardons for his adult children, the question of whether a president should erase the criminal record of close relatives was answered by Bill Clinton in 2001, when he exonerated his half- brother, Roger, by expunging a conviction for cocaine possession and drug trafficking.
As for the question of whether a pardon needs to be tied to a particular alleged crime, a stunning catch-all precedent was set by Gerald Ford in 1974, when he granted a ‘‘full, free and absolute pardon unto Richard Nixon for all offences against the United States which he has committed or may have committed or taken part in’’ during his entire presidency.
This was negotiated because Nixon did not try to pardon himself following the advice from Lawton, which cited the rule ‘‘that no-one may be a judge in his own case’’.
The balance of expert legal opinion agrees with this assessment – but the absence of any test case before the US Supreme Court could leave room for manoeuvre.
One of Lawton’s other suggestions also comes into play. She wrote: ‘‘If the president declared that he was temporarily unable to perform the duties of his office, the vicepresident would become acting president, and as such, he could pardon the president. Thereafter, the president could either resign or resume the duties of his office.’’
It may seem fantastical, but this has not stopped speculation. John Brennan, CIA director under President Barack Obama, told CNN last month: ‘‘ Donald Trump is going to be handing out a number of pardons to his lackeys . . . or get Mike Pence to be elevated and to pardon Donald Trump himself.’’
There is another possibility. Michael Conway, counsel to the House judiciary committee during its impeachment inquiry into Nixon, told NBC News: ‘‘ If president-elect Joe Biden hopes to unify the nation, he should do the unthinkable and pardon Donald Trump.’’
However, this would not end Trump’s legal jeopardy, Conway said. A presidential pardon covers federal crimes but not those at a state level, where Trump still faces inquiries into his business dealings before becoming president.