They did say that Nixon considered pardoning himself but then realized it was better to resign and then let Ford pardon him instead. I think it is more likely that Trump might pardon members of his family, then resign and let Pence Pardon him in the end. This way he could keep his family out of jail as well as himself. And also he would be protecting the office of the presidency for hundreds of years to come as well.
Today in politics
Analysis
begin quote from:
Can President Trump pardon himself?
Can President Trump pardon himself?
Washington (CNN)Late Thursday, The Washington Post reported
that President Donald Trump is seeking to understand his pardon power, a
development that seems directly linked to the ongoing special counsel
investigation into Russian meddling in the 2016 election and possible
collusion between the Trump campaign and the foreign power.
The
Post raises the possibility of Trump pardoning top advisers, family
members and even himself. Friday morning, John Dowd from Trump's legal
team called the Post story about Trump considering pardons "nonsense."
But it is still a good question: Can he do that? To answer that question, I reached out to Brian C. Kalt. Kalt is a professor of law at Michigan State University and the author of a 2012 book entitled "Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies." Our conversation, conducted via email and lightly edited for flow, is below.
Cillizza: Let's start with the Constitution. What does it say, specifically, about presidential pardoning power?
Kalt: Article II, Section 2, Clause 1 of
the Constitution says that the president "shall have Power to Grant
Reprieves and Pardons for Offenses against the United States, except in
Cases of Impeachment." So it doesn't reach state crimes (only "offenses
against the United States") and it can't stop or undo a congressional
impeachment, but other than that the power is pretty broad. Contrary to
what many people think, there is no requirement that a person must be
charged or convicted before being pardoned.
The
only other limits are things that are implicit in the definition of a
"pardon." So, for instance, a pardon can only reach things you already
did. It can't suspend the law in advance, because that wouldn't be a
"pardon."
Cillizza: Can a president actually even be prosecuted in office?
Kalt:
It's not clear. I (in Chapter 1 of my book, "Constitutional
Cliffhangers: A Legal Guide for Presidents and Their Enemies") and many
others have argued that presidents cannot be prosecuted while in office,
but the argument is complicated and there are points on both sides.
The
Constitution does not explicitly provide for presidential immunity, and
that's good enough for some people to say a prosecution would be fine.
But the Constitution also makes the president the head of the executive
branch that would be doing any federal prosecuting, so a president
couldn't really be prosecuted by the federal government unless he
effectively consented.
It is very
awkward to have even an independent counsel go after the president,
because the president's ultimate control over the executive branch means
that the president can derail the investigation as long as he is
willing to pay the political price. State prosecutions are awkward too,
because having one county district attorney haul the president of the
whole country into one is structurally awkward.
If
you like the idea of one county DA whose ideology you share having that
power and using it against a president you dislike, ask yourself if you
would like it if the parties were reversed. Imagine a county DA with
politics opposite yours, pursuing a president you like.
Impeachment
provides another structural piece of the puzzle. There is broader
consensus that presidents can be prosecuted once they have left office,
and impeachment can hasten that day.
Cillizza: No president has ever pardoned himself. But what about the pardon of a top adviser? And what was the blowback if any?
Kalt: One example was President Bush (43)'s commutation of Scooter Libby's sentence, but that did not make a very big splash. Another example is President Bush (41), when he pardoned Caspar Weinberger and other Reagan administration officials
in December 1992 regarding the Iran-Contra affair. They were not his
aides, but he had worked alongside them in the previous administration
and Bush was swept up in the scandal to some extent as well. But Bush
had already lost the election, so there was nothing much for the
blowback to blow back on.
Cillizza:
Presidential pardons have become a late-in-the-term move due to the
controversy they cause. Has that always been the case, historically
speaking?
Kalt:
Historically, there does seem to be a slight increase in the use of the
pardon power toward the end of terms, but not a lot of overly
controversial ones.
More recently,
though, we saw very controversial lame duck pardons by Bush(41) (as
mentioned above) and by President Clinton, who pardoned Marc Rich, Susan
McDougal, and his brother, Roger Clinton, among many others, on his way
out of office. Given what happened to President Ford -- who pardoned
President Nixon in 1974 and then lost the election in 1976 partly as a
result -- you can see why they might have wanted to wait until after the
election (even if a president isn't running for re-election, like
Clinton in 2001, he might want to avoid harming his party's prospects).
But
one of the reasons that the framers of the Constitution gave the pardon
power to the president was that he is politically accountable. That
makes it troubling when presidents wait until the end [of their term],
when they are at their least accountable, to issue controversial
pardons.
Cillizza: Finish this sentence: "The chances of a president being able to pardon himself are roughly ______%." Now, explain.
Kalt:
Ha! I have been studying self-pardons and writing about them for over
20 years now (including in Chapter 2 of my book), and I have thoroughly
convinced myself that any court faced with the issue should rule against
self-pardons' validity. But "should" and "would" are two different
things, and it is so hard to predict just what the Supreme Court would
do that I can't say with any precision. I'll just say that I think it's
less than 50%, but not close to 0%.
On the president's side is the fact that the Constitution does not expressly prohibit self-pardons.
The
argument is a bit more complicated on the prosecution's side -- that's
how it would get to court; the president would have to pardon himself
and the prosecutor would have to prosecute him anyway, presumably after
the president had left office.
First,
as I said in my answer to [your first question], there are limits in
the pardon power implicit in the notion of what a "pardon" is. So the
prosecutor would say that a pardon is inherently bilateral -- something
you can only give to someone else. "Pardon" comes from the same Latin
root as "donate," and it doesn't make sense to speak of donating things
to yourself.
Second, there is a
venerable principle in the law that no one can be the judge in his own
case. We would not permit a judge to preside over his own trial, for
instance. So we would say here that if a president wants a pardon he has
to get it from someone else, i.e., a successor.
Third,
there are some historical arguments that support the idea that the
framers of the Constitution assumed presidents could not pardon
themselves.
One could also
interpret your question more practically: What are the chances that a
president would feel able to get away with a self-pardon. Given how bad
it would look, how it provides grounds for impeachment, and how it could
even be a crime of its own (similar to how a pardon given in exchange
for a bribe could be prosecuted as a bribe, a pardon given to obstruct
justice could be prosecuted as obstruction of justice), and given how it
would not affect any state prosecutions, presidents have lots of good
reasons not to try to pardon themselves.
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