More on Self-Pardoning
Lawrence Tribe, Richard Painter and Norman Eisen argue in WaPo: No, Trump can’t pardon himself. The Constitution tells us so.
They bases their position mostly on the following:
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
On one level, I understand the point. However, on another, I think this is not a slam dunk of an interpretation because, as I have noted elsewhere, impeachment and removal is not a judicial process, it is a legislative one. Impeachment does not confer guilt. It does not result in criminal or civil penalty. Impeachment is being fired for malfeasance (as defined in a highly political process). The only penalty, apart from losing one’s job, is that one can be barred from seeking or holding a position in the federal government. The pardon power is a power linked to judicial action, so I am not at all convinced that the caveat in question leads to the conclusion reached by the authors of the column.
And look, I agree that common sense would dictate that surely he cannot self-pardon. However, common sense is no protection against abuses of power.
The questions is, as I was getting at in a previous post, what happens if he tried? What is the reaction? That is where the crisis would come in.
Parchment rules, I would note, only protect so far. They still require adherence to norms to fully function. President Trump tweeting about his pardon powers in the midst of an investigation that includes himself and his family is a norm-violation. The very fact that we are having this discussion of self-pardons speaks to real concerns over abuses of power by this president. Indeed, just the possibility of using the pardon power for his close associates in the context of the Mueller investigation speaks to those concerns.