On Sunday, Rudy Giuliani claimed that the president can pardon himself. Now, President Donald Trump is making the same assertion. Like Giuliani, he’s wrong.
Giuliani and Trump’s declaration makes sense given their dubious legal argument to Mueller’s team in a January memo (which surfaced Saturday) that the president can’t obstruct justice because he controls all federal investigations.
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Article II of the Constitution states that the president can "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." What’s implicit here is that anything the president should feel the need to pardon should result in impeachment, which he cannot escape via pardon.
We’re landing on the topic of self-pardon only because of congressional Republicans’ failure to recognize the duty to impeach. Impeachment’s a political rather than legal proceeding; it’s the safety mechanism by which Congress is supposed to remove an official unsuitable for office. The point of its design is that impeachment should be triggered far more easily—and executed more quickly—than a criminal proceeding.
It’s almost terra incognita, but not quite: There’s an Office of Legal Counsel opinion on the subject. On August 5, 1974, acting Assistant Attorney General Mary C. Lawton addressed the question of whether POTUS can pardon himself in a memo. Her conclusion? It violates the basic notion that no one can serve as their own judge. President Richard Nixon resigned four days later.
Neither are legal scholars are on Trump’s side, despite his claim. Sure, it’s a topic of interest, but for lawyers, debating the president’s ability to pardon himself is something on the order of doctors discussing how to replicate the work of Dr. Moreau. It’s theoretical, taken seriously only to the extent necessary to affirm that it’s wrong. Even Giuliani admitted that a self-pardon would be “unthinkable.”
None of this is to say Trump can’t arrange for his own pardon, unfortunately. Lawton sketched out two workarounds, options available to Trump that wouldn’t cause an explicit constitutional crisis.
First, Trump could enlist Vice President Mike Pence to assist him.
If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.
Granted, Trump might eschew this option given it carries with it the potential for a coup.
Option two is simply predicated on congressional Republicans continuing to be just as complicit as they have been for the last year and a half.
Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.
Twisting Congress’s arm is a slightly safer option for the budding dictator: Pardon me via legislation, grant me a plea, or make me immune, Trump would say, or I stop nominating judges, veto legislation, and launch a full-out attack on the GOP that’ll haunt you all in the next election.
Despite the OLC opinion, despite widespread rejection of the claim to self-pardon, and despite other options for snagging a pardon, brace for the worst. After all, why make provisions for a quick handoff or enlist Congress when you could flagrantly defy the document that is the foundation of our republic?