Could Trump par­don him­self?

The Washington Post Sunday - - SUNDAY OPINION - BY EL­IZ­A­BETH HOLTZMAN The writer, a Demo­crat from New York, served in the House of Rep­re­sen­ta­tives from 1973 to 1981, in­clud­ing on the House Ju­di­ciary Com­mit­tee dur­ing the Water­gate in­ves­ti­ga­tion.

Can Pres­i­dent Trump par­don him­self? Can he par­don his close as­so­ciates and fam­ily mem­bers? Th­ese ques­tions have be­gun to sim­mer as spe­cial coun­sel Robert S. Mueller III ramps up his in­ves­ti­ga­tion into whether the Trump cam­paign col­luded with Rus­sia in its in­ter­fer­ence with the 2016 pres­i­den­tial election. Mueller is also, un­doubt­edly, look­ing into whether the pres­i­dent ob­structed jus­tice by fir­ing FBI Di­rec­tor James B. Comey. Jared Kush­ner, the pres­i­dent’s son-in-law, is re­port­edly un­der in­ves­ti­ga­tion as well.

So it’s a live ques­tion: In­fu­ri­ated by th­ese in­ves­ti­ga­tions, will the pres­i­dent try to short-cir­cuit them by par­don­ing him­self and oth­ers caught up in the Mueller in­ves­ti­ga­tions? And, if he did, would those par­dons be valid?

The Con­sti­tu­tion’s par­don pro­vi­sion gives the pres­i­dent the power “to grant re­prieves and par­dons for of­fenses against the United States, ex­cept in cases of im­peach­ment.” Some ar­gue that be­cause the lan­guage is broad and there is no ex­plicit pro­hi­bi­tion, pres­i­dents may par­don them­selves.

But this is sim­plis­tic and spe­cious. Pres­i­den­tial self-par­don­ing would vi­o­late the ba­sic struc­ture of our Con­sti­tu­tion, and the whole his­tory of the par­don power strongly weighs against the con­cept.

Pres­i­den­tial power to par­don, in­clud­ing the im­peach­ment ex­cep­tion, is di­rectly mod­eled on the par­don power of the Bri­tish monarch. Royal self-par­don­ing was in­con­ceiv­able un­der the Bri­tish sys­tem. Be­cause Bri­tish mon­archs could com­mit no crime, they had no need to par­don them­selves. Self-par­don­ing, there­fore, was never part of the Bri­tish par­don power — and was not in­cor­po­rated into the U.S. ver­sion. There is no ev­i­dence the Con­sti­tu­tion’s framers ever con­tem­plated or sup­ported a pres­i­den­tial self-par­don­ing power, as the de­bates dur­ing the con­sti­tu­tional con­ven­tion make clear.

When pres­i­den­tial par­don­ing power was pro­posed at the con­ven­tion, an amend­ment was of­fered to pre­vent a pres­i­dent from grant­ing par­dons in cases of treason. Sup­port­ers thought that would dis­cour­age pres­i­dents from com­mit­ting treason. Op­po­nents ar­gued that was an un­nec­es­sary pre­cau­tion, be­cause if a pres­i­dent were “guilty” of treason, he could be “im­peached and pros­e­cuted.” The Con­sti­tu­tion specif­i­cally pro­vides for “in­dict­ment, trial . . . and pun­ish­ment” of a pres­i­dent un­der the crim­i­nal laws, in ad­di­tion to im­peach­ment.

Im­plicit in the op­po­nents’ ar­gu­ment was the view that a pres­i­dent could not have any power to par­don him­self. Oth­er­wise he could com­mit treason (or any other crime), par­don him­self and then, ex­cept for be­ing re­moved from of­fice through im­peach­ment, go scot-free. The power to self-par­don would thwart any crim­i­nal pros­e­cu­tion of the pres­i­dent and stymie full ac­count­abil­ity.

At the con­sti­tu­tional con­ven­tion, op­po­nents of the amend­ment won. Their view that the pres­i­dent must be sub­ject to pros­e­cu­tion rules out any pres­i­den­tial power of self-par­don. Be­cause it pre­vailed then, that view must shape our in­ter­pre­ta­tion of the Con­sti­tu­tion to­day.

A pres­i­den­tial self-par­don­ing power would se­ri­ously un­der­mine the rule of law. If pres­i­dents could self-par­don, they could en­gage in mon­strously wrong­ful and crim­i­nal con­duct with im­punity. That would ut­terly vi­o­late the framers’ be­lief in a lim­ited pres­i­dency and in the idea that no pres­i­dent is above the law.

James Madi­son said, “No man is al­lowed to be a judge in his own cause.” Self-par­don­ing pres­i­dents would be act­ing as their own judge and jury, which no one is per­mit­ted to do in our con­sti­tu­tional scheme. It would stand in jar­ring con­trast to the rest of the Con­sti­tu­tion.

Then there’s the mat­ter of ac­tual prece­dent. No pres­i­dent has ever de­cided to par­don him­self, in­clud­ing Richard Nixon, Ge­orge H.W. Bush and Bill Clin­ton, who all faced spe­cial prose­cu­tors in­ves­ti­gat­ing their con­duct. Self-par­don­ing would have been seen as a clear-cut ad­mis­sion of guilt, not to men­tion an out­rage against the con­sti­tu­tional or­der. Fur­ther, if the par­dons were chal­lenged and in­val­i­dated, pres­i­dents would have the worst of both worlds — they would be open to pros­e­cu­tion, and their guilt would be widely be­lieved.

So, if Trump par­doned him­self, the par­don could be chal­lenged in pros­e­cu­tion brought against him, and a court could, and likely would, in­val­i­date it.

Although pres­i­dents may not par­don them­selves, they may par­don their con­fed­er­ates in crime. But if th­ese par­dons are in­tended to shield a pres­i­dent from pros­e­cu­tion or oth­er­wise fa­cil­i­tate com­mit­ting a crime, the pres­i­dent could be im­peached or pros­e­cuted for grant­ing such par­dons. Re­mem­ber, the Water­gate bur­glars were of­fered pres­i­den­tial par­dons for their si­lence. This formed one of the many charges against Nixon in the ar­ti­cles of im­peach­ment voted by the House Ju­di­ciary Com­mit­tee.

The Con­sti­tu­tion treats the par­don power as it has gen­er­ally been seen through­out his­tory — as a way of in­ject­ing mercy into the jus­tice sys­tem. It was never viewed as a ve­hi­cle for pres­i­den­tial abuse of power, which is what giv­ing the pres­i­dent the power of self-par­don would be.

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