Can Trump Pardon Himself? You Ask, We Answer
On September 1, 1866, Harper's Weekly featured a cartoon about President Andrew Johnson's Reconstruction policy.Credit: Cartoon and explanation provided by HarpWeek. Copyright 2001 The New York Times Company and HarpWeek
April 27, 2017

Allegations of criminal conduct are woven so deeply and broadly into the ugly tapestry of government by and for L'Orange that they seem to be the dominant thread, like polyester in a 70s disco suit.

Campaign officials, campaign consultants, current and former officials in the administration, family members, and 45 himself have been accused of an array of crimes, ranging from perjury (Looking at you, AG Sessions!), money-laundering (Paging Paul Manafort!), legislating on inside information (Hi, Secretary Price!) all the way up to treason (Michael Flynn, come on down!). The web of allegations is so large and sticky and the actors caught in it so clumsy and obvious at times that Sessions, for one, has already recused himself from participation in the Russian election-tampering investigation because of his contacts with Russian officials. Meanwhile, Michael Flynn registers - cough - retroactively as an actual agent of an actual foreign government and Paul Manafort seems to be heading down that same road.

And, of course, the handicapping on Impeachment of Donald of Orange continues at betting sites around the world.

Thence we move on to the list of questions that always dog corrupt governments: Who will be charged with federal crimes? Whom will federal prosecutors immunize or offer deals to climb the ladder toward bigger targets? Who will plead and flip on co-conspirators? Who will take the federal fall, invoking the RWNJ equivalent of omerta? Who will avoid prosecution because damning evidence will be hard to gather or the targets will adroitly insulate themselves with layers of deniability through intermediaries and/or shell corporations? Is there a federal prison large enough to hold all these felonious Orange-Enablers?

Fun stuff, right? Well, yes and no. At 3 a.m. most nights, it seems to me more like cold comfort, as the racists, misogynists, plutocrats, and grifters loot our federal government and destroy its international reputation.

Further darkening the horizon from time to time in recent days, observers - including your correspondent and an odious political hack who will remain nameless here - have rained on the criminal-prosecution speculation-parade by noting that the Electoral College President might pardon one or more people who might have committed one or more federal crimes on his behalf.

In response to raising the possibility of presidential pardons here and on Twitter, I've been told, for example, that he couldn't pardon people accused or convicted of treason, or he couldn't pardon himself, or he may only pardon people for federal crimes. Some of these contentions are erroneous, so I want to dispel misconceptions about the scope of the presidential pardon power.

Spoiler Alert: all the "public servants" and private-sector-pirates who've allegedly committed one or more federal crimes in the Orangerie - up to and including "treason" or "sedition" or whatever it might be called - can be presidentially pardoned for all of their alleged federal crimes. And they can be pardoned before or during prosecution, or after conviction. Full stop.

Before explaining that, one point of clarity: the presidential pardon power applies only to federal crimes. It's entirely possible that State governments, acting under State law, could prosecute people for conduct for which they've been pardoned under federal law.

For example, under the "dual sovereignty doctrine," a homicide that is also a hate crime could be presidentially pardoned so that the crime could not be prosecuted under federal criminal civil-rights statutes but could still be prosecuted as an ordinary murder under state law.

Of course, the state prosecutors would have to identify state statutes under which they could prosecute. And, they'd have to develop evidentiary bases strong enough to support successful prosecutions.

The Constitutional Basis of the Presidential Pardon

The presidential pardon power is constitutional in origin: it's found Article II, Section 2, Clause 1 of the Constitution. This language empowers the president "to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It's as broad a power as exists under the Consitution.

While reviewing the origin and scope and court cases on the pardon power (which also extends to reprieves, remissions of sentences and fines, amnesties, and commutations of sentences, like Chelsea Manning's by The Last Adult President) one scholar concluded that the pardon power is "a sweeping constitutional power that is checked only by the political process and the power of voters to elect a new President should they disagree with the clemency decisions of the current one, or a Congress angry enough to seek impeachment."

Unfortunately, I think that author gets it just about right. So, let's unpack several misconceptions about presidential pardons.

Can Treason be Pardoned? Yes.

Let's start with a response I've frequently seen on Twitter when I've warned about the possibility of pardons: "He couldn't pardon people who've committed treason!"

Um, no, sorry. He could pardon traitors (or "seditionists" or "colluders-with-Russia," or whatever we want to call them).

The leading SCOTUS case on the scope of the presidential pardon power is still Ex Parte Garland, decided right after the Civil War. Yes, that Civil War, folks - the one where States seceded and started a war to preserve slavery.

An Arkansan named Garland - a lawyer - followed his state out of the Union and became, eventually, a Senator in the Confederate Congress. When the war ended, he wanted to go back to practicing law in federal court, as he'd done before the war.

However, during the war, Congress passed a law that barred anyone from holding any federal "office" unless they could swear an oath that

  • The deponent has never voluntarily borne arms against the United States since he has been a citizen thereof;
  • he has not voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto;
  • he has never sought, accepted, or attempted to exercise the functions of any office whatsoever, under any authority, or pretended authority, in hostility to the United States;
  • he has not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto; and,
  • he will support and defend the Constitution of the United States against all enemies, foreign and domestic, and will bear true faith and allegiance to the same.

As you can imagine, Mr. Garland had a bit of a problem swearing truthfully to this oath and practicing in federal court, so he applied for a pardon to President Johnson. (BTW, that is the first President Johnson - Andrew - the one who induced the South to prefer Democrats, as opposed to the second one - Lyndon - who induced the South to prefer Republicans.) Accommodating the southern gentleman, President Johnson granted him a pardon on these terms: "for all offences by him committed, arising from participation, direct or implied, in the Rebellion,"

Pardon in hand, Mr. Garland hied to the courts. When he reached the SCOTUS, a 5-4 majority (where have we heard that before?) held that Garland could return to practicing law in the courts notwithstanding his inability to swear the oath.

If I'm reading the case correctly, the Court had at least two bases for its decision. The first basis was that the oath requirement and the associated penalties did not exist when Garland embarked on his secessionist lifestyle, so it was unconstitutional as an after-the-fact punishment (an "ex post facto" law). The second basis is the pardon, and it's worth quoting the Court in detail here:

The Constitution provides that the President "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.


The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offence of treason, committed by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offence, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offence notwithstanding the pardon.

So...are presidential pardons available even to traitors? Yes, Virginia, it appears they are.

Does Acceptance Of A Pardon Equal An Admission of Guilt?" Perhaps, But So What?

A lawyer in my Twitter feed referred me to a case called Burdick v. U.S., which he said held that acceptance of a pardon equalled an admission of guilt. In that 1915 case, an editor of the New York Tribune refused to answer questions about his sources (everything old is new again, amirite?) even after he was granted a presidential pardon to protect him from criminal prosecution. The Court said Burdick could refuse the pardon, given that it carried "an imputation of guilt," unlike a grant of immunity.

So that's a stigma a potential pardonee will have to bear, right? This "imputation of guilt"?

Two responses here:

  1. See Garland, which declares that the pardon acts to make the pardonee innocent again: the pardon "blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence." According to the SCOTUS in 1865, there is no guilt after the pardon. That a later interation of SCOTUS thinks there is an "imputation" - nothing more - seems rather insignficant in light of the real effects of a pardon. It's not as if the pardonee has to declare explicitly his or her criminality in order to receive a pardon.
  2. Does it really matter when the pardonee is free and clear of actual legal vulnerability?

But, But...Impeachment!!!! Okay, What About It?

It does appear that the pardon power cannot be used to undo the effect of impeachment. Apparently, that's because impeachment is itself a constitutional process and a civil proceeding (not a criminal prosecution) - and the only penalty for impeachment is removal from office. So, this president couldn't use his constitutional pardon power to undo Congress's constitutional action to remove him from office.

That said, this President will not likely be impeached - at least not before he's given this Republican-controlled every legislative victory it can get on tax-cuts, deregulation, destruction of O-care, defunding of women's healthcare providers, and destruction of the scientific basis for policy-making. If we want impeachment to work, we will have to replace this Congress with one that isn't so spinelessly committed to party and ideology over country.

Could The Electoral College President Pardon Himself? Uh...Nobody Knows, But Probably He Could. Regardless, He Probably Will Pardon Himself Even If He Can't.

Of course, there's no historical precedent to which we can turn for guidance on this issue. Nobody can definitively answer this. There's a good summary of the arguments here, including a quote from Richard Posner, a prominent legal scholar. I read the arguments to say that that the presidential pardon power is so expansive that a president probably can self-pardon.

As there's no historical precedent for nearly everything this "government" is doing, we can turn only to his prior behavior for predictions about what the Orange Current Occupant (White House) might do. And that is...anything he wants, and he'll let the courts sort out whether he can get away with it.

That's been his MO throughout his life, and it's worked for him, by and large. Why would he let a little thing like constitutional ambiguity or the appearance of over-reaching stop him?

We all better hope that State Attorneys General find super-excellent independent State bases on which to prosecute Orange campaign and government officials who deserve it. Just desserts always - ALWAYS - should flow to those who've earned them.

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