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What if Donald Trump tries to pardon himself?

The constitutionality of self-pardons is an open question. Here’s how it might play out.


 
U.S. President Donald Trump speaks as he meets with county sheriffs during a listening session in the Roosevelt Room of the White House on February 7, 2017 in Washington, DC. (Andrew Harrer/Getty Images)

(Andrew Harrer/Getty Images)

As special counsel Robert Mueller continues to investigate President Donald Trump’s campaign and administration’s ties to Russia, the Washington Post reported that Trump has enquired about “his power to pardon aides, family members and even himself.”

The constitutionality of self-pardons remains a surprisingly open question. Brian Kalt has been studying the subject for two decades. The matter has never been tested in a court of law, because no president has ever attempted it, although Richard Nixon reportedly considered the option before resigning. Kalt, a professor of law and the Harold Norris Faculty Scholar at Michigan State University, believes self-pardons are “legally invalid.” “A pardon is inherently something that you give to someone else,” he says. Kalt also points to the notion that one cannot be a judge in one’s own case.

But Jed Shugerman, a professor of law at Fordham University, notes that this is a judicial principle, while pardoning is an executive power. “Without a stronger hook to say that there is an implicit barrier to self-pardoning, judges are less likely to say that a self-pardon is beyond the [powers granted by the] constitution to the president,” he says.

Most pardons signed by the president are the result of a bureaucratic process in which seekers apply to the Department of Justice’s Office of the Pardon Attorney. They are typically at least five years removed from prison, and demonstrate that they accept responsibility for their crimes. But presidents aren’t restricted to granting such pardons—they can also be given to people who haven’t completed their sentences, or have yet to be charged.

A self-pardon or the pardoning of associates wouldn’t necessarily be an admission of guilt. “The power to pardon does also include the power to exonerate people, and in rare instances it has been used that way,” says Kalt. Although a pre-emptive pardon would end prosecution, it is not necessarily obstruction of justice—a president would simply be making a decision the best way to proceed in the case, just as a prosecutor has the discretion not to press charges. But his motives matter. “A pardon that benefits himself directly, like a self-pardon would, or that is part of a conspiracy where he buys the loyalty of his criminal minions by promising and giving [them] pardons—that corruption itself is a crime,” Kalt argues. The president could not then be prosecuted for whatever he pardoned himself for, but could be pursued for abusing his pardoning power.

Impeachment can’t be prevented by a pardon. That’s because impeachments are driven primarily by political rather than legal considerations—an action doesn’t have to be a crime for a president to be impeached for it. In Trump’s case that means he could forestall federal prosecution of himself or his associates, but still lose his office, in part because of the nature of the pardon itself. “It isn’t just a get out of jail free card for anything,” says Shugerman. “[It] has to actually identify the potential crimes that one is pardoned for—[Congress could] flip that same document into an articles of impeachment.” Meanwhile, a self-pardon would also likely cost the president and his party significant and electoral support. Gerald Ford lost the 1976 presidential election in part because of his pardon of predecessor Richard Nixon, which was labelled a “corrupt bargain” by Democratic opponents.

RELATED: How does impeachment work, and could it happen to Donald Trump?

Pardons also only apply to federal prosecutions. “States also have concurrent criminal law,” Shugerman notes. Were the president to fire Mueller to halt the investigation or grant pardons to himself or his associates, state prosecutors could take up the investigation or file charges instead. “If Trump is systematically undermining the rule of law, dismantling the Department of Justice and trying to thwart all norms about law enforcement, then it winds up being the responsibility of the states to step into that breach.”

The legality of self-pardons has not become any clearer in the two decades since Kalt first wrote about them as a law student. His 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies examines the question and other unsettled areas of constitutional law. It’s better to consider these matters before they become reality ,he argues, when it’s not clear whether Democrats or Republicans would benefit from the outcome. “We don’t know, so we have to actually—despite ourselves—do what’s right, instead of what would make our side win,” he explains. But he says discomfort with hypotheticals and the desire to preserve political flexibility have always forestalled any such debate. Plus, people tend to cherry-pick the parts that serve their own ends. “It’s kind of frustrating to spend your time writing something knowing that no one is going to use your arguments because they agree with them [but] because they’re advantageous for their side,” he admits.

Kalt notes that his analysis of self-pardons has been partly based on the assumption that “the only president who would do this would be one who had nothing to lose”—one facing certain impeachment and a hostile public, and fearing prosecution. That’s not the case for Trump. “He could argue that the investigation against him is a witch hunt, that it is fake news, and that he’s pardoning himself not to plunder his office but to do the right thing,” notes Kalt. “[And] 30 per cent of the country would nod their head and agree, ‘Yeah, that’s what he’s doing.’”

 The president has upset whatever assumptions he once had about what was implausible, Kalt acknowledges. Constitutional Cliffangers was written as a series of scenarios “that probably won’t happen, but wouldn’t it be interesting if they did,” he says. But during Trump’s short time in office, several have been the subject of discussion, including the prosecution of a sitting president. Kalt still doesn’t think Trump will try to pardon himself. “But he’s surprised me before.”

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What if Donald Trump tries to pardon himself?

  1. Well it’ll certainly go down in the history books……like the horse in the Roman senate.

  2. Uh… pardon himself for what? You in the mainstream fake media have been endlessly pushing this “Russia interfered with the election” narrative, based on no actual evidence, anonymous “expert testimony” and lots of supposition. This witch hunt which a CNN producer called a “nothing burger” on candid camera is only about your idealogical agenda and furthering the interests of corporate fascism.

    And what is the official Ministry of Truth story? Piles of damning evidence released by Wikileaks from Washington whistleblowers, showing Hillary Clinton’s criminal activities and incompetence, openly soliciting bribes, leaving the Benghazi embassy staff to die to avoid political embarrassment, colluding with you in the fake media and the DNC in an attempt to rig the election for her corporate masters — releasing this embarrassing information about your cheating was actually arranged by the Russians through Wikileaks somehow, according to the absurd narrative.

    But if Clinton hadn’t engaged in all of these illegal activities, she wouldn’t have gotten busted. Her crimes and glaring character flaws are clearly shown in the documents, and not a matter of speculation. The actual persons or entities who originally obtained these documents is not known, but is really irrelevant.

    Nobody in her camp even disputed the authenticity of these documents, they just whined a lot about how their damning secrets were inconveniently released for all to see.

    I guess that you of the fake media have no choice but to double down on your wacky conspiracy theories and social manipulation, or you would have to acknowledge your complicity in the attempted election fraud and lack of all journalistic integrity.

    • Hillary has never been charged with anything…but that doesn’t bother you

      • Yes it bothers me that Baby-Eater Clinton is still free after so much open corruption and so many dead civilians due to her war crimes in Libya, Iraq and Syria. For some reason Obama got away with 8 years of mass murder, election meddling and corruption as well.

        I would guess that the reason the current administration hasn’t followed through with promises to lock her up is that they also have compromising connections with the military-industrial complex.

        • None of that happened….it’s just your sexism

          • Hahaha! Seriously? Where did you get that little brown nugget of wisdom?

            You don’t know anything about me, and nothing that I said on this matter has anything to do with sex.

            A female criminal is equally liable for her actions as a male criminal. Let me guess: You probably think that my criticism of Obama is because he’s partly black, rather than because he spent his entire presidency bombing Muslims into oblivion, and punished Wall Street for causing the financial crisis with trillions of taxpayer dollars?

            And my criticism of Trump: What type of -ism does your narrow world view suggest caused that?

            Your comment only shows an intellectual laziness and inability to think for yourself.

          • Hillary as a ‘baby eater’??

            You another religious nutbar on here?

            She has not been charged or arrested or had any proof of wrong doing

            She is, however, female.

          • Yes, Baby-Eater Clinton is my nickname for her, for all the children she killed as secretary of state.

            A religious nutbar? No. Whatever gave you that idea, since I also didn’t mention anything relating to religion at all? Are you a brainwashed CNN zombie or SJW troll?

            Her emails are proof of her wrongdoing.. the parts where she discusses illegal activities and attempts to rig the 2016 election. Also her illegal erasure of her illegal private email server which was wide open to foreign spies, and likely contained even more emails about her bribery schemes. The fact that she hasn’t been charged doesn’t mean she didn’t do anything wrong.

            Yes, she is a woman, and that is a completely irrelevant point.

            As I said before, female criminals are not different than male criminals, so you are not making any sense by repeatedly bringing up that point. I would think she was an equally terrible person if she was a man.

          • Well since Hillary didn’t do any of that……

            You are a religious nutbar and a sexist

            I suggest you see a doctor for your drug use.

          • Wow. It’s like trying to have a rational discussion with a chimpanzee.

          • When you’re finally capable of a rational conversation, let me know.

          • I am really bored with reading your goofy comments.

          • Good, then bugger off.

          • This is my thread, so why don’t you go and leave stupid comments someplace else?

  3. Exactly, pardoned for what?

    At this point he hasn’t been criticized, much less charged, much less convicted of anything.

    People should be asking why he represents such a threat to the establishment and media propaganda machine.

    I get the sour grapes from whining liberals, but coming up on a year of total 24/7 anti trump media vitriol is unlike anything in modern history. They must be really threatened to risk exposing their bias in this way.

    Clinton is a witch, and the wife of an impeached, laughing stock president.

      • Yes, maybe you could be one when you grow up.

        Being weak, stupid and ugly inside complete your resume and I believe everyone here will be your references.

        Take your own advice and bugger off.

        • Ahhh the Christian terrorist is back.

          You plan an attack dooya?

          Only Christians believe in witches.

          • Good to see a positive, healthy, intelligent discussion of the issues by informed and educated individuals ….

          • If you ever find such a thing online …..

          • Of course you’re a troll.

          • You don’t know what that is either

            You simply want to preach and condemn online and get upset when others tell you to get lost.

  4. He would have the option to pardon himself if were to be found guilty of wrong doing, there has been no evidence of any wrong doing, so at this point the only “pardon” to be discussed is if he has to pass in front of someone and says “pardon me”.

    • If he pardons one or more of his aides who is facing prosecution for a criminal offense, that is Obstruction of Justice … which is a very serious criminal act.

      That is what people are talking about, in context with self-pardon. And that is why Trump himself has asked for advice and opinions about pardoning.

      Do pay attention.

  5. Brings new meaning to the phrase … “pardon me”.

    • Yeah,

      Well I start every post thoughtfully and intelligently.

      Then the trolls who have nothing to add, do what they do.

      Gotta tell them what they are. No reason to tolerate their behaviour.

      If you want rational discourse, you’ll get it here. Until the trolls show up anyways.

      • Mostly we have right wing nutbars on here, all happily agreeing with each other until I come along and call BS…. that disturbs them

        • Nutbars are defined by being irrational.

          Rational discourse requires debating arguments supported by evidence.

          You don’t do that. If you did, you may actually have to accept arguments that offend you.

          Nutbars never do. They’re always right in their own minds because they won’t debate in rational discourse.

          Based on my limited experience with you, you’re a nutbar too.

          • I believe you’re the one talking about witches and baby-eaters.

            Don’t expect me to take you seriously.

          • You’re a nutbar.

            I thought I was clear.

            That is all I expect of you.

          • And you’re a Christian terrorist.

            Irrational and probably violent.

          • That’s what I’d expect considering I haven’t advocated Christianity, terrorism or violence anytime.

            Fill your boots nutbar.

          • Ahhh the innocent look, the screams of protest….a Christian bully in retreat……LOL

          • Retreat hell.

            I’m pleased with the optics of this dialogue.

          • Dialogue doesn’t have optics……but then again you’re not IN a dialogue.

          • Playing the stupid card again eh?

            You don’t need no stinking dictionary do you?

          • You wanna play games, I’m here all night.

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