Can Trump Pardon Himself and All those Around Him?
Apparently Donald Trump is considering pardoning himself, his children, his attorney Rudy Giuliani, Roger Stone, maybe Paul Manafort, and who knows whom else.
He has already pardoned retired General Michael Flynn who is now advocating martial law unless Donald Trump is returned for a second term in January. https://www.thedailybeast.com/when-the-bombs-go-off-the-blood-is-on-mike-flynns-hands-retired-officers-blast-his-calls-for-martial-law The Department of Justice is apparently investigating “someone” in an alleged bribery for pardon scheme, conceivably including campaign contributions. https://www.cnn.com/2020/12/01/politics/presidential-pardon-justice-department/index.html
The US Constitution gives a President broad discretion to grant pardons for federal crimes except in cases of impeachment; “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” US Constitution Article 2, Section 2, Clause 1.
The two obvious limitations are 1) “in cases of impeachment” and 2) “grant”. Since President Trump was impeached (although not convicted in the Senate), he may not be eligible for a pardon for those criminal offenses (if any) encompassed in his impeachment. The use of the words “grant pardons” may preclude self-pardons. Finally the phrase “offenses against the United States” does not allow a President to pardon anyone for offenses against a state or local government.
Frank Bowman writes in “Just Security” that the framers not only did not envision, but did not sanction “self pardons”. https://www.justsecurity.org/73539/why-a-self-pardon-is-not-constitutional/ The Office of Legal Counsel in the Department of Justice has long concluded that a President cannot self-pardon. https://www.justice.gov/file/20856/download
Two distinguished historians looked at the framers’ intent and debates and concluded that a President also could not pardon his co-conspirators in a matter concerning his own impeachment. https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/
There is a detailed procedure in place for those seeking Presidential pardons to assure that justice is served. https://www.justice.gov/pardon/pardon-information-and-instructions However, Presidents, if they so choose, can bypass this process entirely, and some have done so, particularly during their last days in office – a time when their responsiveness to the countervailing views of Congress and the American voting public is as its lowest ebb. Some argue that now is the time to fashion a constitutional amendment to restrain a President’s pardon powers as many states already do for their chief executives. https://www.lawfareblog.com/time-amend-presidential-pardon-power
In a recent article in the Los Angeles Times supporting a Trump self-pardon, Doyle McManus argues that we need to put all of Trump’s misdeeds behind us and move on to the urgent priorities facing the new Biden Administration. https://www.latimes.com/politics/story/2020-12-02/biden-trump-self-pardon
I disagree largely because of the still unanswered questions about the Russia investigations, which Trump and his subordinates have done everything within his powers to block. If there is something there, it likely includes closely held secrets among Stone, Manafort and Trump to which we may never know the answers. However if in fact Putin was calling the shots on matters of Russian-American interests, this investigation goes to the very fundamentals of our democracy and national sovereignty. Personally, I don't disagree about the need to improve US Russian relations, but what has been troubling is Trump’s ever-present tendency to support Putin’s interests and point of view to the detriment of America’s own. Trump’s own Director of National Intelligence, Dan Coats, was concerned that Putin had something on our President, as he could discern no other motive for the President’s behavior towards Putin. https://thehill.com/homenews/administration/515768-former-intel-chief-had-deep-suspicions-that-putin-had-something-on
Lucien Wulsin
Dated: 12/3/20