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One More Observation on the Self-Pardon Issue

It occurred to me after my post this morning:  the thing about the constitutionality of the self-pardon is that the only way to know with certainty if it is constitutional or not is for the SCOTUS to rule after the action is undertaken and challenged.  As such, the only way to have a definitive answer is to create a constitutional crisis.

Therein lies the rub.

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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. Bob The Arqubusier says:

    Just how would the Supreme Court get involved in the matter? The Constitution is pretty clear — the pardon is an exclusive power of the executive. Further, I don’t believe the court can, sua sponte, act on the matter — someone would have to bring a case there. It couldn’t be Congress, as they have their own way of addressing the matter (impeachment). The Justice Department is part of the Executive Branch, so they fall under the president’s authority — and they can’t bring a suit against him without his consent.

    I’m still leaning towards the belief that Trump set this off to keep his enemies all wrapped up in a highly technical and theoretical matter to keep them too distracted to interfere with his real work. And it’s a great diversion — it has a pretty simple answer, but it’s one they can’t accept — so they tie themselves in knots trying to find another answer that they can find palatable.

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  2. Just 'nutha ig'nint cracker says:

    @Bob The Arqubusier: The Supremes would (eventually) become involved when, say, the State of New York charged Trump with… oh… maybe money laundering (to pull a topic completely out of thin air) and Trump responded with “wait a minute, I pardoned myself” but the police took him into custody anyway.

    Hope that helps.

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  3. Bob The Arqubusier says:

    @Just ‘nutha ig’nint cracker: “Hope that helps.”

    It really doesn’t. Unless you were trying to prove the veracity of your name.

    US Constitution, Article I, Section 2:

    …and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

    The pardon power is limited to federal crimes, not state crimes. New York’s charges could only be pardoned by New York’s governor.

    I trust that helped you.

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  4. Just 'nutha ig'nint cracker says:

    @Bob The Arqubusier: Okay, so change the State of New York to FBI and start again. I really thought you might be able to generalize at least a little, considering how you leap to conclusions.

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  5. Just 'nutha ig'nint cracker says:

    However, I fully expect that Trump would expect that any immunity he gave to himself would be blanket. It’s good to know that you don’t even though you’d probably insist that it was should such an event ever happen.

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  6. the Q says:

    So, theoretically, Trump could call in the House/Senate Dem leadership, poison their water, kill them all, then pardon himself?

    Somehow, beyond the legalese, this is not what the founders had in mind.

    Like or Dislike: Thumb up 3 Thumb down 0

  7. @the Q: I am sure you are correct. But, the non-murdered in that case would likely have the political will to treat him like the Joker at that point.

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  8. Bob The Arqubusier says:

    @Just ‘nutha ig’nint cracker: After you actually read the Constitution, might I suggest you brush up on The First Rule Of Holes?

    Once you realized you’d gotten it wrong, you should have simply accepted it and moved on. (A gracious person would acknowledge their error, and a truly gracious one would express thanks for the correction, but that would be asking too much.) But to dig in your heels and keep insulting the person who showed you that you were wrong… that’s just immature.

    Especially since your later, fallback objection had already been addressed and countered.

    You said: Okay, so change the State of New York to FBI and start again.

    I had previously said: The Justice Department is part of the Executive Branch, so they fall under the president’s authority — and they can’t bring a suit against him without his consent.

    The FBI is part of the Justice Department, last time I checked. (And — in the interest of full disclosure — I should have said “press charges” instead of “bring a suit.” You didn’t pick up on my error, so I’ll correct it.)

    At this point, I’ve offered you a hand out of your hole. However, I suspect you’ll slap it aside and keep digging.

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  9. Bob The Arqubusier says:

    @the Q:

    So, theoretically, Trump could call in the House/Senate Dem leadership, poison their water, kill them all, then pardon himself?

    Theoretically, yes. Practically, Trump would have to get his actions (or, slightly less ludicrously, his schemes and orders) past the Secret Service, who 1) are always around Trump, and 2) have a little more than a casual interest in preventing a mass homicide.

    And, as noted above, the president’s pardoning power is limited to federal crimes. There would be a whole lot of highly motivated prosecutors who would be looking for the slightest excuse to charge Trump under some state law somewhere, and I would be extremely confident in predicting they’d find a way to do just that.

    Finally, as we saw last June 14 in Alexandria, Virginia, “attempting to bring about political change through mass murder” is a tactic more associated with the left than the right these days.

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