Presidential self-pardon power uncertain

In a January letter to special counsel Robert Mueller, and discussed widely yesterday by President Trump’s new lawyer, Rudy Giuliani, the idea of a self-pardon has surfaced.

In other words, Mr. Trump could issue a presidential pardon to himself for any crime he might have committed. Although Mr. Giuliani has backed away (sort of) from this, the idea is now out there and can’t be called back.

So now the legal world is asking if this is possible. The answer? No one knows.

There are arguments on both sides. For example, there is nothing in the Constitution that says a president can’t pardon himself (or herself as the case may be). So if the president can pardon anyone, he can pardon himself. Done is done.

If you dislike the idea, you explain that the reason nothing is there is that this is so outlandish, the Founding Fathers never imagined they would need to prohibit something so inimical to the idea that no one is above the law. The whole point of the American Revolution was to get rid of kings.

If the president can issue a pardon to himself every morning, he can just be a total outlaw during the day and there would be nothing anyone could do.

There is something to be said for each side. That is why constitutional law can be so gnarly. It is also why it is easy to pick a side depending on who you like and not on what is the better analysis.

So beware, there will be pundits — many of them, and many who are deep experts — who will assure everyone they have given this idea lots of thought (they haven’t) and that the answer is clear (it isn’t) and that they are being totally objective in reaching their legal conclusion (of course they are). But the reality is that if this ever actually happens, we won’t know the answer until the Supreme Court tells us what it is.

My hope is this remains the stuff of speculation and law school exams, and we never have to find out for sure. It would be — and I mean this sincerely — a real constitutional crisis and a black mark on the republic. Whoever is president should have the moral conviction to stand by their actions and, if they transgress, face the consequences.