What legal analysts have said about whether Democrats could pardon themselves as president

What legal analysts have said about whether Democrats could pardon themselves as president
Image: National Archives

A debate rages about whether President Trump could pardon himself, if special counsel Robert Mueller were to bring legal action against him in some way.

Trump tweeted on Monday that he has the “absolute right to pardon himself,” but asks why he would do that since he hasn’t done anything to be pardoned for.

Predictably, the media are setting up a chorus about Trump claiming to be above the law.  J.E. Dyer addressed that issue from a separate perspective on Monday, pointing out that what the Mueller team is doing isn’t a constitutional legal proceeding anyway.

Senator Ted Cruz (R-TX), an accomplished scholar of constitutional law, posted a very useful tweet thread on the pardon question Monday evening.

Cruz’s bottom line: it’s complicated.

Andrew McCarthy argues somewhat differently at the top link.  Trump can immunize himself with a pardon against a conviction in court, says McCarthy.  But he can’t pardon himself in the case of impeachment.  The Constitution doesn’t give the president the power to override impeachments – of anyone.

What have analysts argued in the past about Democrats potentially facing indictments as president?

Here are a couple of examples.  In 1998, when Bill Clinton was under threat of indictment (as well as impeachment) for lying under oath about sexual misconduct, Slate’s “Explainer” published an essay on whether he could pardon himself.  The conclusion (emphasis added):

No one knows the answer. The Constitution says that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This sentence, like many in the Constitution, can reasonably be interpreted in several ways. And since no court has ruled on this issue–because no president has ever tried to pardon himself–it remains an open question.

The simplest interpretation is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.

If we used the reasoning of the “above the law!” chorus, that would mean Slate, on the advice used for its Explainer essay (from several law professors and a Congressional Research Service expert), was saying Clinton was above the law.

Slate went on to speculate on how the courts would handle it if Clinton pardoned himself, and special counsel Ken Starr attempted to prosecute him anyway.

If Clinton pardons himself, and Starr prosecutes him anyway in a federal court, that judge will have to decide whether the president’s self-pardon is valid. Amazingly, the judge might rule that she isn’t permitted to interpret the meaning of the Constitution in this matter. This is because the Supreme Court has ruled that certain constitutional interpretations are the province of “political” branches, not the judicial branch.

In 2016, columnist Chris White at the Law & Crime blog discussed whether Hillary Clinton could pardon herself, if she were elected president and then faced an indictment.  White’s bottom line:

Could a future President Hillary Clinton pardon herself?

The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate.

As with other commentators, White emphasized that the presidential pardon power is conferred by the Constitution, and for federal offenses, is unlimited.

Based on the language of Article II, Section 2, the only limits placed on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and a pardon cannot override the Congress’ impeachment power.

White also pointed out that if she pardoned herself, a new “President Clinton” could not then be impeached by Congress, because her offenses would have occurred before she took office.

White acknowledged the same dispute others refer to: that the Constitution’s language doesn’t address self-pardon, and might be interpreted differently.  Emphasis in original:

[T]he legality of the self-pardon remains an open question. There are persuasive arguments on both sides.   For the sake of brevity, the two arguments can be boiled down to this: (1) those that argue a self-pardon violates longstanding legal principals that a person should not act as their own judge and that no person is above the law; and (2) those, including Richard Nixon’s attorneys in the aftermath of Watergate, that argue that power to pardon is broad and unlimited, except for the two specific limitations mentioned in the Constitution.

But the tally on this at the moment is that it’s not just partisans making partisan points on this question, and nobody is arguing the president is “above the law.”  That includes Trump and his lawyers.  When Democrats were the potential self-pardoners, analysts were coming up with the same answers.

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LU Staff

LU Staff

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