Pardons: Trump’s get-out-of-jail-free card
“Can President Trump pardon himself?” That’s the question swirling around Washington right now, said Charlie Savage in The New York Times. Last week it was reported that the embattled president has discussed with his top aides the ramifications of issuing pardons to anyone special counsel Robert Mueller is investigating over the Russia scandal—including himself. Trump later tweeted that he has “complete power to pardon.” It’s certainly true that presidents have full rein to pardon people for federal crimes, even if—as was the case when President Gerald Ford pardoned former President Richard Nixon over Watergate—the recipient hasn’t yet been charged. But the legality of a commander in chief granting clemency to himself is less clear. Days before Nixon resigned in 1974, the Department of Justice’s Office of Legal Counsel declared that a president couldn’t pardon himself, because it would violate the “fundamental rule that no one may be a judge in his own case.” But the issue has never gone before the courts, so there is no “definitive answer.”
“The Constitution should bar self-pardons,” said Jonathan Turley in TheHill.com, but the truth is “that it does not—at least expressly.” Article II, Section 2 simply says a president may “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Framers “could have easily excluded presidents and did not.” Congress, of course, would still be free to impeach Trump if he short-circuits Mueller’s investigation by pardoning himself and his aides, but that would be a political decision, not a legal one. As unpalatable as it might be, the Supreme Court could rule that a strict reading of the Constitution permits Trump to pardon himself.
Ignore these “silly technicalities,” said Noah Feldman in BloombergView.com. For a president to give himself a “get-out-of-jail-free card” would be fundamentally at odds with “the rule of law” upon which our Republic was founded. It would make us “a dictatorship, not a democracy,” and Congress and the courts would never stand for it. Don’t be so sure, said Richard Primus in Politico.com. The Republicans who control Congress haven’t exactly fallen over themselves to hold Trump to account, and it’s not unthinkable that a conservative Supreme Court would provide him with legal cover. For the president to pardon himself would obviously ignite a “political firestorm”—but when has that stopped Trump before? We may be headed into “uncharted territory.”