By Lynda Bryant-Work
Contrary to the Constitution, President Donald Trump has the idea he can commit federal crimes – and pardon himself, giving him a wide-open field for law breaking and corruption.
Trump made the assertion in a recent tweet, where he cited several “legal scholars” for the basis of his declaration – though he made no reference to Constitutional law. In the tweet, Trump claimed that “numerous legal scholars” were the basis for his declaration.
“But why would I do that when I have done nothing wrong?” Trump quipped.
Trump’s statement essentially claims he has the right to break federal law and immunize himself from the consequence, which is nothing short of a declaration of lawlessness without precedent. Trump told reporters, “People have got to know whether or not their president is a crook. Well, I’m not a crook. I’ve earned everything I’ve got.” But the message he tweeted out is something far different: he can be a crook, and no one can stop him.
So, is it possible for a president pardon himself?
The question has come up in the past, as happened four days before Richard Nixon resigned. His own Justice Department’s Office of Legal Counsel stated no, citing “the fundamental rule that no one may be a judge in his own case.”
In an Aug. 5, 1974 memorandum opinion for the Deputy Attorney General, it states:
- Executive Action
- Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, the question should be answered in the negative.
- The necessity doctrine would not appear applicable here. That doctrine deals with the situation in which the sole or all judges or officials who have jurisdiction to decide a case are disqualified because they belong to a class of persons who have some interest in the outcome of the litigation, thus depriving the citizen of a forum to have his case decided. In that situation the disqualification rule is frequently relaxed to avoid a denial of justice. Evans v. Gore, 253 U.S. 245, 247–48 (1920).
The Justice Department was correct in referring to the principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
A president may conclude that even if a person committed a crime, he is acting in good faith to protect national security, such as when President George H.W. Bush pardoned former defense secretary Caspar Weinberger in the Iran-contra affair. In such instances, the president is acting a kind of super-judge deciding on someone’s conduct. But he is not making a decision about himself.
Self-pardon is impossible.
In other cases which are the Anglo-American legal tradition it is clearly noted that one may not be both the court and a litigant in the same case of Thomas Bonham v. College of Physicians.
The Constitution’s pardon clause has it origins in the royal pardon granted by a leader or king to a subject, but there is no evidence or precedent for a king pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were so, there would be few deposed kings.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It also states that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
The pardon provision of the Constitution is there to allow the president to act in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable.
Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.
Legal scholars generally agree that the pardon is one of the president’s least constrained constitutional powers. He can grant them for federal offenses, Congress can’t revoke or modify them, and the Supreme Court has never intervened to limit one
But the president cannot pardon himself.
Unfortunately, there is always a loophole – the vice president could if under the Twenty-Fifth Amendment the president declared he was temporarily unable to perform the duties of the office, the vice president would become acting president and as such could pardon the president. Thereafter the president could either resign or resume the duties of his office.
Any member of Trump’s administration, including the vice president and any Republican in Congress that participated in the employment of Amendment 25 for the purpose of letting Trump skate away from legal consequences, would not only be ensuring their place in infamy – but would be sacrificing their political career for Trump. Perhaps stranger things have happened, but how likely is this?
Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution. Some might argue that a congressional pardon granted to the president would not interfere with the president’s pardoning power because that power does not extend to the president himself.
But outside of the strict legalities involved in this scenario, a GOP controlled Congress would have to think long and hard about the political ramifications of aiding and abetting a man who is virtually confessing guilt in such a contorted and corrupt machination. If the Republican party is treading on thin ice with the American people (outside of Trump’s marginal, hard core cult) at the present time – heading down the road of a legislatively enacted pardon, might be the virtual death knell of the GOP as a major party.
While President Trump appears to think he can do a lot of things, he can – but not without legal repercussions. Using official powers for corrupt purposes can constitute a crime, and just because he announces he can self-pardon – doesn’t clear him of the Constitution.
Bottom line – there is one thing Trump cannot do without being the first in recorded history – he cannot pardon himself.