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Tue Jun 20, 2017, 02:48 PM

Could Trump issue himself a pardon?

I doubt that Trump can legally pardon himself. The fact that we are having to ask the question is so very very sad https://www.washingtonpost.com/news/politics/wp/2017/05/24/could-trump-issue-himself-a-pardon/?utm_term=.5aac3e6356f6

“We can all only speculate what would happen if the president tried to do it,” said Brian Kalt, professor of law at Michigan State University and author of the book “Constitutional Cliffhangers.” “We’re all just predicting what the court would do if it happened, but no one can be sure.”

The constitutional language governing pardons reads, “The President … shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That vagueness is part of the reason the boundaries of the authority would need to be interpreted by the courts in unusual cases, like the one at hand.

That said, Kalt’s got an opinion about what the Supreme Court would do if Trump (or any president) tried to give himself a pardon: They’d throw it out.

Kalt’s reasons are similarly rooted in interpretations of the language of the Constitution and the intent of its authors.

For example, a pardon is “inherently something that you get from someone else,” he argued. That’s not explicit in the constitutional language, but, then, other boundaries we understand for pardons aren’t either, such as our understanding that there need not be a criminal charge before a pardon. (The most famous example of this kind of pardon was offered by President Gerald Ford to his predecessor, Richard Nixon.)

P.S. Ruckman, professor of political science at Northern Illinois University and author of the blog Pardon Power agreed with this idea in an email. “Supreme Court jurisprudence has always assumed a dichotomy — the granter and the recipient,” he said — the implication being that one person can’t play both roles.

What’s more, “presidents are supposed to be limited,” Kalt said. “The president has all of this power, but he has a limited term. If he was able to pardon himself, that would project his power well past his term.”

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Response to Gothmog (Original post)

Tue Jun 20, 2017, 02:50 PM

1. NO, that's why Nixon had Ford do it. Trump would do likewise.

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Response to Cattledog (Reply #1)

Tue Jun 20, 2017, 02:51 PM

3. I agree with your analysis

The fact that lawyers are looking into this issue is what bothers me greatly

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Response to Cattledog (Reply #1)

Tue Jun 20, 2017, 02:55 PM

4. Pence is going to be very wealthy

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Response to Cattledog (Reply #1)

Tue Jun 20, 2017, 04:08 PM

10. I agree that

he can't. I think that Nixon knew that would be another abuse of power. However, I do not think Nixon was actually worried about facing legal charges: his defense team would have immediately gone for classified documents that no one would have agreed, at that time, to turn over. It would not have had any chance of going to trial.

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Response to Gothmog (Original post)

Tue Jun 20, 2017, 02:50 PM

2. Either a general strike or military coup would result.

 

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Response to Gothmog (Original post)

Tue Jun 20, 2017, 03:05 PM

5. The thought of dangling a "pardon" over Trump and his crime family's head must be empowering.

Pence, or the next Prez, will certainly hold the cards. Of course, Trump probably has something on Pence too to force him into granting a pardon.

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Response to Gothmog (Original post)

Tue Jun 20, 2017, 03:21 PM

6. i actually think this is an interesting constitutional issue.

first, it's a very sorry state of affairs that the supreme court is probably even more partisan now than it was when it issued bush v. gore, in which the republican majority sided with the candidate they no doubt voted for on election day and covered it with logic so twisted it could be considered farce.

i have zero confidence in this court to find a thoughtful answer to this question.


second, it's plain that benedict donald's use of a self-pardon would be a flagrant abuse, an obvious obstruction of justice.


that said, constitutional questions should be answered not as one-offs, but to set precedent for future cases, so justices should consider different circumstances under which a self-pardon might happen.

on its face, the founders didn't want a corrupt government, and a self-pardon could allow a president to violate federal law with impunity. clearly the founders didn't want to grant anyone a license to do that.

however, note that the original intent of the pardon power was to give the president a check and balance against over-zealous prosecutors. remember that the english liked to lock up colonists they didn't like, and we owe much of the constitution and the bill of rights to the founder's efforts to prevent this.

so, what happens if an over-zealous prosecutor goes after the president and the president can't self-pardon? it seems that, either you have to allow a self-pardon or you have to give the president some other protection, e.g., to fire the prosecutor or to at least say that a sitting president can't be prosecuted (although that doesn't prevent a president from being locked up once out of office).

if a president does abuse a self-pardon, one might reason that at least the people can then vote that person out, or that congress could impeach and remove. remember, of course, the founders paid attention to institutional powers, and didn't really contemplate the current situation where a same-party congress might refuse to impeach and remove a president, no matter how horrendous.

i don't know that i have an answer to this.

like i said, i think it's actually an interesting constitutional question -- even though it would clearly be an abuse of power in the current situation.





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Response to unblock (Reply #6)

Tue Jun 20, 2017, 03:43 PM

7. I don't think the president can self pardon

And the pardon was not intended as a check on overzealous prosecutors. It was intended as a way of introducing mercy into cases where the strict operation of justice would cause an excessively harsh result. The check on overzealous prosecutors are judges and juries.

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Response to marylandblue (Reply #7)

Tue Jun 20, 2017, 04:01 PM

9. agreed -- it's a check on the end result of the judicial process, not the prosecutor in particular.

although "mercy" is an overly narrow rationale as it implies that the judicial process got it largely right (e.g., right verdict but overly harsh sentence).

the pardon power is also there for cases where someone got railroaded or the judicial result was just plain wrong.

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Response to unblock (Reply #9)

Thu Jul 20, 2017, 10:50 PM

14. From Prof. Tribe

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Response to marylandblue (Reply #7)

Thu Jul 20, 2017, 10:48 PM

12. If he does pardon, then no 5th amendment protection

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Response to unblock (Reply #6)

Tue Jun 20, 2017, 03:45 PM

8. I posted this thread because I am not sure that there is a definitive answer

This is an interesting constitutional question. I tend to believe that Trump cannot pardon himself but this matter is not clear

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Response to unblock (Reply #6)

Thu Jul 20, 2017, 10:49 PM

13. Accepting a pardon is an admission of guilt

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Response to Gothmog (Original post)

Thu Jul 20, 2017, 10:31 PM

11. I tend to agree with Prof. Tribe

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