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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.

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About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Tony W says:

    Is America great yet? Six months in and I’m already tired of all this winning.

    Half a year after the end of what was possibly the most scandal-free presidency of my lifetime, we are talking about whether an admittedly corrupt president can pardon himself.

    WTF

    Like or Dislike: Thumb up 8 Thumb down 2

  2. JohnMcC says:

    We need to get this cleared up! Can’t have a nice Reichstag fire without knowing that pardons will be splashed around on all concerned.

    Like or Dislike: Thumb up 4 Thumb down 1

  3. Just 'nutha ig'nint cracker says:

    I would note that it took Richard Nixon’s sock puppet President Gerald Ford to pardon Nixon. Still, what would happen if Trump tried to pardon himself post impeachment if charged with a statute violation (and how he would be able to defend his action when it was ignored by the legal system) does make an interesting question.

    And it has the makings of either a Constitutional crisis or a James Patterson thriller. Maybe both!

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Anonne says:

    Personally, I think it makes no sense that a president can pardon people for crimes when they haven’t been tried or convicted of anything. I had seen some talk about that and was like, what? I bet there is a pile of secret pardons in the desk.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. DrDaveT says:

    Given Trump’s established level of competence, he would attempt to pardon himself for something that the FBI didn’t actually know he had done, thus increasing the eventual case against him.

    Like or Dislike: Thumb up 5 Thumb down 0