Originally published at: https://boingboing.net/2020/12/02/can-trump-pardon-himself-his-children-and-his-allies.html
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I mean, ultimately the court that will have that decision is going to be a court that recently turned to the right. They’ll have to decide if he can do that.
A bigger question is, who has standing to challenge him if he does it?
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Probably the biggest impediment to doing so is DJT’s ego:
A pardon requires an admission of guilt.
You don’t pardon the innocent, and I’m not sure he’d admit there’s anything to pardon.
But frankly, I don’t want to see endless political prosecutions at the federal level. I’d be perfectly happy if New York state (and anywhere else) finds cause to put him away for a long, long time.
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Again, why would he need a pardon considering he is “perhaps the most innocent man anywhere in the history of the United States”?
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Here’s a bit of legal logic which i nonetheless believe:
If anyone can pardon themselves of any crime then there’s no functional legal system. That is, that one person functions outside of the legal system and could commit any crime including the crime of arbitrarily permitting others to avoid the legal system (aka: a pardon).
This transcends Hobbs’ “Leviathan” (more closely approximating legal Calvinball)
So, lawyers, judges, law clerks… if you give a nod to self-pardons then you can kiss your career (philosophically) goodbye.
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The US Attorney would be the office bringing any federal charges and have the standing to challenge any purported pardon. Let’s say, to pick a wild hypothetical, that the SDNY indicts him for money laundering. His attorneys then move to dismiss the charges based on the self-pardon, and the courts take it from there.
But you’re right that unless and until there are actual charges, I don’t think there would be standing to challenge it.
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Of course, the question we all want to know is: how many founders can dance on the head of a pin?
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As unfortunate as it may be, I think the best argument is that the President can pardon himself. If you look at the relevant text in Article II:
The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of [impeachment].
it’s clear the framers knew how to set a limit (no, for impeachment) and did not limit the power to exclude the President himself. There are really one three limitation:
- Federal Crimes only (“against the United States”)
- No impeachments
- No ongoing contempt proceedings (maybe)
Should the pardon power be more limited? I’ve thought before it should at least be limited such that it does not apply between the election (or, say, a week before the election - long enough that the voters have a chance to weigh the pardons in their selection of a President) and the next inauguration. But of course neither D’s nor R’s would go for it because they all benefit from the current state of play (see, e.g., Marc Rich).
i also take (small) comfort in knowing that even if he does pardon himself or his family, that it only protects him/them from federal crimes. they are all still accountable for state crimes, and i’m sure there are many opportunities there.
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“I haven’t done anything wrong, as you all know, but I’m giving myself a preemptive pardon just in case Crazy Nancy or Sleepy Joe attempt another witch hunt against me.”
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There was a Supreme Court ruling suggesting that accepting a pardon implies guilt. However that’s not really the case anymore. When Ford pardoned Nixon he pardoned Nixon for not only crimes he did commit but also for crimes he may have committed.
But I do think you’re right about Trump’s ego potentially getting in the way. I’m not sure his ego will let him resign even for a minute to let Pence pardon him. Leaving open the possibility of him pardoning himself instead which could be challenged in court. But the court is so packed with Trump appointees and right wingers that they might decide that a president can pardon himself, of course they would be doing so while Joe Biden was president, so maybe they would think twice about that? But probably not because they know Joe Biden won’t pardon himself because he’s not a sociopath like Trump is. So don’t know.
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He could try.
That will still not affect:
STATE. CRIMES.
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Regardless of what he might get away with here on this planet, the rotting gut of his mind is enough of a prison sentence. I feel sorry for him having to see himself in any mirror.
Delightful how much shame he’s brought on his family, and they know it.
If the federal system of government were functional, we wouldn’t be here. If the electoral college worked as designed, he wouldn’t have made it to the presidency. If sepereation of powerers worked as designed, he’d have been removed from office.
I don’t think its a good idea to rely on such a dysfunctional system to suddenly start producing good outcomes all of a sudden when it’s been so reliably betraying the electorate for many decades.
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What I find intriguing is the idea that he could hand out “preemptive pardons” to someone not even charged with a crime but who may be under investigation (Giuliani for example). Which would essentially be admitting a crime was in fact committed.
Of course in Trumpworld there are no crimes committed by the loyal, rather the crime is being committed by those investigating Trump and his cronies.
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It would be funny if they tried the Pence thing but after he was president for a day Pence decided that he wouldn’t give Trump a pardon.
If Pence would be president for a day would it make him 46 and Biden 47 then?
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I quite liked the line “I want him to live long and not prosper.”
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The whole pardon power should be rescinded as it allows for lawless political operations. What’s to stop a President from pardoning an executioner?
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Alternatively Trump could pardon everyone… empty the Federal prisons - create chaos for years.
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That would be hilarious, largely because it seems so incredibly unlikely because Pence is such a complete and utterly complicit suckup. On the other hand, I imagine he expected that Trump was old and that Pence would be able to run for president in 2020. Or at the very least in 2024. But Trump is making sure that isn’t going to happen either.
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