Too soon?
Not if, as this article from WaPo suggests, our president is already asking questions of his lawyers regarding who he can pardon including himself and when.
Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.
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Where does the power of presidential pardon come from? The US Constitution (Article 2, section 2) says this … [the President] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment …
That’s it. There is no case law on presidents pardoning themselves because it has never happened. The Donald did promise us he would be a historic president so … campaign promises kept? I’ve been waiting to be sick of all the winning. Is this what he meant? Is he such a patriot that he is playing 23 dimensional chess to use his own person to settle a Constitutional question?
Not being a legal scholar, I googled the term “presidential pardon themselves”. One of the first results was another WaPo article Could Trump issue himself a pardon? So, being the curious fellow that I am, I waded in. The short answer is that nobody knows for sure, but there are some opinions.
One source for the article was Brian Kalt who wrote Pardon Me: The Constitutional Case Against Presidential Self-Pardons for the Yale Law Journal. As Kalt seems to have more credibility than I do, I pushed through the article. Most of it was over my head but I did pick up these nuggets.
The self-pardon was nowhere mentioned in the debates or in the English history that informed them. As such, arguments derived from the intent of the Framers are speculative at best. There are two likely possibilities: Self-pardons either were not considered, or their invalidity was silently presumed. A third possibility, that self-pardons were presumed valid, is less likely.
But can’t the president just do whatever he wants if there is no black letter law on the subject?
Even though the pardon power of the President resembles that of the King,the office of the President is in general much more limited. The specific bounds and nature of presidential power provide further structural evidence against self-pardons.
Here is the thing that stuck out most for me in my research for this diary, the President of the United States is the nation’s chief prosecutor. You might think that would be the Attorney General but the AG serves at the pleasure of the President. Ultimately, the power and the responsibility lie solely within the Oval Office.
To go free, a defendant who feels he has been unjustly accused has to convince one of the following of his innocence: a prosecutor, who can refuse to prosecute; a grand jury,which can refuse to indict; a judge, who can dismiss a case or sentence the convict lightly; a petit jury, which can acquit; or a President, who can pardon. If an accused President could not convince any of those five (presuming the President in the equation is his successor), why should he be able to go free? He would be the only person in America with the power to avoid jail solely by his own decision. We do not think twice about preventing prosecutors, judges, or jurors from handling their own cases. Structurally, why should the President be different?
Mr Kalt also cited an opinion written by Justice Oliver Wendell Holmes in Biddle v Perovich that I think I will close with.
We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
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