Daniel R Depetris
Can an American President use his pardoning authority under the Constitution to pardon himself?
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Ordinarily, this would be a question for constitutional law professors in a symposium at Harvard Law School. It would be an interesting discussion to have, but one that wouldn’t hold any practical weight. After all, what president in his right mind would do something so brazen as preemptively cover himself with a blanket of immunity – and think it was a smart idea?
The truth is we don’t really know the answer to this question because no president in history has had the cojones to do it, and therefore the courts haven’t taken it up. President Trump’s tweet this past Saturday that “all agree the U. S. President has the complete power to pardon” suggests that he believes he could use the authority of the office to get even himself off the hook for any criminal wrongdoing that Special Counsel Robert Mueller might find. In legal circles, however, self-pardoning is generally viewed as prohibited. A 1974 memo from the Office of Legal Counsel states that the president can’t act as his own judge, while just this weekend three law professors wrote in the Washington Post that they “know of not a single instance of a self-pardon having been recognized as legitimate.”
I have no idea whether the law could be stretched to allow a president to leverage his pardoning power for himself. Common sense would tell me “no,” though, because it would be identical to a judge dismissing a case in which he was named as a defendant. It just seems an inherently unlawful thing to do, or at least antithetical to the rule of law.
But what I can say is that regardless of the law itself, a self-pardon would be a political crime the likes of which this country has never seen.
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Imagine a scenario in which President Trump does the unthinkable and pardons everybody involved in Mueller’s Russia investigation. It’s hard to imagine, but Trump has turned a lot of unimaginable things into reality by stepping right over the norms that govern (or used to govern) American political behavior.
On the Democrats’ side, you would have a full riot. Democratic leadership and establishment lawmakers who previously scorned their progressive colleagues for wasting time on Trump’s impeachment would now unleash the dogs. Congressmen Al Green and Brad Sherman, two Democrats who have either discussed or actually filed articles of impeachment, would look like savants who saw what was coming before any of their colleagues did.
Of course, even if the entire House Democratic conference was on board, they would need at least 23 of their Republican colleagues to join them. Republican leadership have so far kept their members in line on all things Trump, but a self-pardon would be a different ballgame. Speaker Paul Ryan wouldn’t be able to explain this one away as the thought process of a non-politician or the mistakes of a rookie who doesn’t understand how governing works. Using the “he’s new to this” excuse wouldn’t fly.
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While convincing 23 GOP lawmakers definitely seems like a big job for Democrats, a self-pardon might be insane enough to do it. It wasn’t long ago that over two dozen GOP senators and members of Congress deserted Trump hours after the Access Hollywood tape dropped, so it isn’t a long shot to think that a similar exodus could happen if Trump did the unthinkable. Aside from assaulting one of his employees in the Oval Office, using the power of the presidency to acquit himself of possible criminal liability is one of those developments that would shock the conscience – even for Republican lawmakers who, lets face it, probably don’t think Trump is a positive element for their reelection prospects.
Bottom line for President Trump: Don’t be stupid. It will create a lot of pain for him; it will put him in the history books as the only American president to have given himself a get-out-of-jail-free card. He would look like a guilty man, killing whatever political capital he has left for the remainder of his tenure. And he will have put the Republican Party in uncharted legal waters.
