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Sun Jul 23, 2017, 09:34 AM

No, Trump cant pardon himself. The Constitution tells us so.

I've excerpted what I think are the most important parts of authors' the argument below. Read the whole thing, It's short and powerfully reasoned.

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

The Constitution embodies this broad precept against self-dealing in its rule that congressional pay increases cannot take effect during the Congress that enacted them, in its prohibition against using official power to gain favors from foreign states and even in its provision that the chief justice, not the vice president, is to preside when the Senate conducts an impeachment trial of the president.


https://www.washingtonpost.com/opinions/no-trump-cant-pardon-himself-the-constitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story.html?utm_term=.4519b526f727

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Reply No, Trump cant pardon himself. The Constitution tells us so. (Original post)
Nitram Jul 2017 OP
The Velveteen Ocelot Jul 2017 #1
Nitram Jul 2017 #3
Not Ruth Jul 2017 #2
Nitram Jul 2017 #4
Nitram Jul 2017 #5
Not Ruth Jul 2017 #11
LiberalFighter Jul 2017 #27
Igel Jul 2017 #7
spiderpig Jul 2017 #6
Igel Jul 2017 #8
Voltaire2 Jul 2017 #9
Nitram Jul 2017 #10
Voltaire2 Jul 2017 #12
Nitram Jul 2017 #13
The Velveteen Ocelot Jul 2017 #16
Voltaire2 Jul 2017 #17
The Velveteen Ocelot Jul 2017 #19
tritsofme Jul 2017 #18
Gothmog Jul 2017 #14
PoliticAverse Jul 2017 #15
tritsofme Jul 2017 #20
Nitram Jul 2017 #21
BzaDem Jul 2017 #22
The Velveteen Ocelot Jul 2017 #23
BzaDem Jul 2017 #29
NobodyHere Jul 2017 #24
tandem5 Jul 2017 #25
SummerSnow Jul 2017 #26
Renew Deal Jul 2017 #28

Response to Nitram (Original post)

Sun Jul 23, 2017, 09:38 AM

1. Jeez, what a blast from the past. "Dr. Bonham's Case" --

Another law school flashback.

A link to the article, please?

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Response to The Velveteen Ocelot (Reply #1)

Sun Jul 23, 2017, 09:41 AM

3. sorry, I forgot to include the link.

thanks for reminding me!

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Response to Nitram (Original post)

Sun Jul 23, 2017, 09:40 AM

2. Is it possible to post the specific portion of the Constitution referenced by the original post?

 

I honestly do not understand how a court case in 1610 (before the Consitution) would supercede the Constitution.

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Response to Not Ruth (Reply #2)

Sun Jul 23, 2017, 09:46 AM

4. It doesn't supercede the constitution. It is one precedent in English Law upon which

the Constitution is based. the paragraph below indicates that the President can't preside over his own impeachment. It follows that he cannot sit in judgement over himself and that he cannot, therefore, pardon himself.

Article I, Section 3:

6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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Response to Nitram (Reply #4)

Sun Jul 23, 2017, 09:48 AM

5. This, too.

Article I
Section 2
1: The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

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Response to Nitram (Reply #5)

Sun Jul 23, 2017, 10:08 AM

11. So Trump could pardon himself, but if he were impeached, that would negate the pardon?

 

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Response to Not Ruth (Reply #11)

Sun Jul 23, 2017, 10:37 PM

27. I would argue that he attempted to pardon himself

that would be grounds for impeachment.

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Response to Not Ruth (Reply #2)

Sun Jul 23, 2017, 09:58 AM

7. Esp. in this case.

The college could not collect a fine it had the power to inflict.

That's the basis for the unconstitutionality?

Tell that to the IRS. Or the EPA.

Not to mention many, many state agencies. Executive all, but fining by regulation and sentencing in executive-branch "courts."

Or the judiciary, which regularly imposes fines and collects them (contempt of court, a "charge" not brought by a prosecutor and not subject to trial by jury, not penalties imposed by statute).


The Constitution is largely based on English common law and precedent. They're tacitly incorporated into how we understand the language from the 1790s because they're the background against which the Constitution and early laws were formulated, contrasted, and adjudicated. If you remove the context, you can basically treat the text however you like (meaning "they" can treat the text however "they" like). So it's not so much "supersede" as "illuminate" or "inform the reading of".

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Response to Nitram (Original post)

Sun Jul 23, 2017, 09:52 AM

6. It's hard to believe we are even discussing this...

...but this is TrumpWorld. Up is down. Left is right. My eyeballs are tired from rolling around in my skull.

I'm too old for this s***.

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Response to spiderpig (Reply #6)

Sun Jul 23, 2017, 09:59 AM

8. Why?

It's a rumor.

Rumor is more trustworthy than direct observation.

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Response to Nitram (Original post)

Sun Jul 23, 2017, 09:59 AM

9. It is a weak argument.

"The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself."

What the constitution actually states is simply "he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

The fact that the constitution carves out impeachment from the pardon power argues against the theory that the president cannot pardon himself. In fact the explicit carve out only makes sense if "self pardon" was implied by the pardon power.

Absent impeachment, this ends up in the Supreme Court. Don't count on the "no self pardon" argument prevailing.

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Response to Voltaire2 (Reply #9)

Sun Jul 23, 2017, 10:03 AM

10. Voltaire, do you mind if I ask in you have a background in law?

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Response to Nitram (Reply #10)

Sun Jul 23, 2017, 10:20 AM

12. Nope. Just another ignorant opinion.

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Response to Voltaire2 (Reply #12)

Sun Jul 23, 2017, 10:45 AM

13. Join the club!

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Response to Voltaire2 (Reply #9)

Sun Jul 23, 2017, 02:18 PM

16. Tribe, Painter and Eisen are some pretty heavy intellectual hitters

in the legal profession - Tribe especially. That doesn't mean they're right (and in the law, nothing is objectively "right" like gravity or photosynthesis; courts decide what's right and sometimes they're wrong, see, e.g., Bush v. Gore), but I wouldn't dismiss the argument as weak. I have no doubt that the question would wind up in the Supreme Court if the event ever came to pass.

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Response to The Velveteen Ocelot (Reply #16)

Sun Jul 23, 2017, 02:36 PM

17. It seems weak to me for the reason stated.

Yes I know that this is now a matter of some rather interesting debates by major constitutional law authorities, but they are debating it and there is quite a lot of disagreement.

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Response to Voltaire2 (Reply #17)

Sun Jul 23, 2017, 02:46 PM

19. If you read the article carefully it makes a lot of sense.

The authors point out that the purpose of granting the power to pardon was to enable the president to act as a judge over another person by absolving him of legal responsibility for a crime - in effect, acquitting him. If the power to pardon is effectively that of a judge, then it stands to reason that the old principle in Dr. Bonham's Case, that one may not be the judge in one's own case, would mean that a president can't pardon himself.

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Response to Voltaire2 (Reply #9)

Sun Jul 23, 2017, 02:45 PM

18. Agreed. Does this mean they have also found a prohibition against pardoning Cabinet officers or

federal judges? As they too are subject to impeachment? Their argument seems to be on shaky ground, and it should be noted is far from a universally held opinion among experts. How sad that questions that had always seemed academic now have urgency...

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Response to Nitram (Original post)

Sun Jul 23, 2017, 11:17 AM

14. I agree with Prof Tribe

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Response to Nitram (Original post)

Sun Jul 23, 2017, 11:27 AM

15. The Supreme Court would find that the President can't pardon themself. The vote...

would likely be 9-0.

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Response to PoliticAverse (Reply #15)

Sun Jul 23, 2017, 02:51 PM

20. Doubtful, you can almost bank Thomas, Alito, and Gorsuch

Taking a literalist view of the constitutional text, which says that the president's pardon power is only limited in cases of impeachment.

I'm not sure where Roberts/Kennedy would end up on the question, but they would have the decisive votes.

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Response to tritsofme (Reply #20)

Sun Jul 23, 2017, 05:23 PM

21. Even conservative judges are reluctant to give up power and authority.

That would be the consequence of accepting the argument that a president can pardon his or herself.

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Response to Nitram (Original post)

Sun Jul 23, 2017, 05:41 PM

22. So if Nixon didn't resign and was removed, Ford couldn't have pardoned him?

For that matter, under this logic, wouldn't Trump be able to pardon himself if he resigns a minute before the Senate votes to remove him?

What about impeached cabinet officials? Could a president not pardon cabinet officials once impeached? What about a future president pardoning past impeached cabinet officials? Would such pardons also be invalid?

I think the argument proves too much. I think there are reasonably compelling argument against self pardons, but such arguments have nothing to do with either of the two clauses cited in your post. The more compelling arguments relate to the definition of the word pardon, and how that definition intersects with long standing common law principles.

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Response to BzaDem (Reply #22)

Sun Jul 23, 2017, 07:13 PM

23. Of course Ford could have pardoned Nixon if he'd been impeached and removed.

Pardons don't have anything to do with impeachment. Pardons are issued when a person has committed, or might be prosecuted for the commission of, a federal crime. Impeachment can occur without a crime ("high crimes and misdemeanors" don't have to be federal crimes), and a crime can occur without impeachment. As to your example of Trump pardoning himself if he resigns before the Senate removes him, he couldn't pardon himself if he'd already resigned because he wouldn't be the president any more. And he could be prosecuted for federal crimes regardless of whether he resigned, is removed, or keeps his fat ass squatting in the Oval Orifice for the next 3-1/2 (or, God help us, 7-1/2) years, unless he pardons himself before he leaves office - assuming the Supreme Court eventually says he can do that.

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Response to The Velveteen Ocelot (Reply #23)

Mon Jul 24, 2017, 08:45 PM

29. I agree that Nixon could pardon Ford. I was using the question to dispute the logic in the OP.

From the OP:


It adds 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 logic of the OP says that because of the first sentence in the above quote, an impeached president cannot pardon himself. I was pointing out that the logic of that argument would not just prohibit self-pardons, but a much larger universe of pardons. In other words, the logic leads to an absurdity, which means that there is something wrong with the logic.

I happen to disagree with the second sentence. The provision in the first sentence (that an official removed through impeachment remains subject to prosecution) makes perfect sense, even if the president could pardon himself. It doesn't say that impeached officials are ALWAYS subject to prosecution, under all circumstances. It just means that the act of impeachment does not remove the ability to prosecute (and is in fact wholly independent). It does not prohibit OTHER circumstances (such as a pardon, prosecutorial grant of immunity, jury finding of not-guilty, etc) from removing the ability to prosecute.

Now, despite the logic of the OP being somewhat unsound, I do believe self pardons would be unconstitutional. But my reasoning has nothing to do with the sentences quoted from the OP.

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Response to BzaDem (Reply #22)

Sun Jul 23, 2017, 07:14 PM

24. The president can't pardon against impeachment

 

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Response to Nitram (Original post)

Sun Jul 23, 2017, 09:32 PM

25. I think he can pardon himself because well... Biden rule.

Ironclad logic, rule of law -- pish posh!

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Response to Nitram (Original post)

Sun Jul 23, 2017, 10:22 PM

26. lol...

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Response to Nitram (Original post)

Sun Jul 23, 2017, 11:15 PM

28. Pardons don't protect from impeachment.

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