USA TODAY International Edition
If a president can self- pardon
He could rape, steal or murder while in office and be immune from prosecution
In the aftermath of his electoral defeat, we are confronted with the possibility that President Donald Trump might pardon himself. No other president, not even Richard Nixon, has dared to do so. But Trump may want to extricate himself from the web of criminal accusations surrounding him. A self- pardon would be an assault on the rule of law and the principle that no person, including the president, is above the law. The public outcry would be enormous.
As a first- term congresswoman, I became familiar with presidential pardons when former President Gerald Ford testified before Congress in October 1974 about pardoning President Richard Nixon.
I alone questioned Ford about the suspicious circumstances surrounding the pardon, and whether it was part of a deal with Nixon to get him to resign. I never got a credible answer.
The Nixon pardon angered the public and created a dual justice system — one for the powerful and another for everyone else.
My fears realized
I was concerned that shielding Nixon from accountability would signal to future presidents that they could commit crimes in office without facing criminal penalty. Sadly, my fears were realized in the lawlessness of Trump’s presidency, and the looming possibility of his self- pardon.
Although there is no case law on the subject, a self- pardon is unconstitutional and invalid — and therefore cannot guarantee Trump, once he leaves the presidency, protection from prosecution for any federal crimes he might have committed.
The Constitution gives presidents broad powers to issue pardons for any federal ( not state) crime. But allowing presidents to pardon themselves contradicts the whole thrust of the Constitution, and the notion that people cannot be judges in their own case.
The Justice Department’s Office of Legal Counsel has also opined that a self- pardon would be invalid.
The Constitution’s framers feared unbridled power and sought to check the presidency in various ways. A selfpardon would sidestep those checks, creating a zone of impunity around presidents that would threaten democracy with autocracy.
Think of it. If presidents could selfpardon, they could rape, steal or murder while in office and be immune from federal prosecution. They could commit treason, conspire with another country to get elected, or take bribes from foreign governments without fear of any criminal punishment.
The framers believed they could deter presidents from committing crimes by ensuring criminal prosecution if they did. The Constitution makes it clear that impeachment and removal from office would not be a sufficient penalty, specifying that an impeached and removed president “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
Presidential self- pardon would render this provision meaningless, and there are no meaningless provisions in the Constitution.
Basic rules of constitutional interpretation reject readings that would hollow out constitutional provisions. Both the Constitution’s text and debates at the Constitutional Convention show that the framers intended miscreant presidents could be prosecuted.
Nixon pardon defeated Ford
Trump might try to avoid the legal problems of a self- pardon by making a deal with Vice President Mike Pence to step down from the presidency — either temporarily under the 25th Amendment or permanently through resignation — and have Pence pardon him. Pence, though, should remember that President Ford’s Nixon pardon was deeply unpopular and led to Ford’s defeat at the polls. A Pence pardon of Trump could and should end Pence’s political career.
Trump should also consider the risks of pardons for his family or associates. He has toyed with the idea of pardoning Michael Flynn, his former national security adviser, who pleaded guilty to lying to the FBI. He already commuted the sentence of Roger Stone, his longtime political strategist who was convicted of lying to Congress. Although Trump may have the power to pardon his family and associates, if he does it to obtain their silence about his crimes, that could be a crime in itself and expose Trump to further prosecution.
Accepting a pardon, and guilt
Any of these moves — a self- pardon, a pardon deal with Pence, or pardoning family and friends — would add to the long list of unconstitutional, corrupt, shameful and dishonest acts that have marked Trump’s presidency. But in a way, if Trump abuses the pardon power to exonerate himself, it might at least inject an element of honesty. According to President Ford, accepting a pardon is an admission of guilt.
By the same logic, if Trump pardoned himself, he’d be confessing to criminality of at least some part of his presidency. Coming from a president who has made false or misleading claims over 22,000 times, that would be a rare acknowledgment of truth.