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Media Wonders: Can the President Pardon Himself?

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The current conversation that seems to have caught the media’s attention is focused on what might happen if the President is charged with a crime?

The mainstream networks have wondered if President Trump would “dare” to pardon himself if charges were to be brought against him?

It’s an interesting question, and it’s actually one that the media has wondered (and answered) before. Back in 1998, the liberal media explained that President Bill Clinton could probably pardon himself and the GOP could do nothing about it.

From the liberal rag Slate.com:

Can the president really pardon himself?

No one knows the answer. The Constitution says that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This sentence, like many in the Constitution, can reasonably be interpreted in several ways. And since no court has ruled on this issue–because no president has ever tried to pardon himself–it remains an open question.

The simplest interpretation is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.

How about more recently?

In 2016, legal expert Dan Abrams wondered what would happen if Hillary Clinton were elected President only to be indicted for her crimes?

Well, it was likely that nothing would (or could) happen, because Clinton would have the power to pardon herself.

Could a future President Hillary Clinton pardon herself?

The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate.   Here is why.

The president’s pardon power comes from Article II, Section 2 of the United States Constitution that provides, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

Based on the language of Article II, Section 2, the only limits placed on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and a pardon cannot override the Congress’ impeachment power. Presidents have used this power to issue pardons in a wide range of matters throughout the country’s history. However, no president has ever attempted to pardon himself.

As a result, the legality of the self-pardon remains an open question. There are persuasive arguments on both sides.   For the sake of brevity, the two arguments can be boiled down to this: (1) those that argue a self-pardon violates longstanding legal principals that a person should not act as their own judge and that no person is above the law; and (2) those, including Richard Nixon’s attorneys in the aftermath of Watergate, that argue that power to pardon is broad and unlimited, except for the two specific limitations mentioned in the Constitution.

So, assuming Clinton follows the latter approach and issues the self-pardon, where does that leave Congress? Could the House of Representatives start impeachment proceedings based on the criminal indictments?

That answer to that question is a resounding “no.”

Sadly, much of the leftist media has forgotten these previous arguments defending the power of the President to pardon themselves. Today’s media seems outraged at the very notion that Trump would even consider self-pardoning.

In the last few days both President Trump and one of his chief legal advisors, former New York City Mayor Rudy Giuliani, have argued in the media that the President has the “absolute” power to pardon himself. These pronouncements have led to the typical media outrage that we’ve become accustomed to in the age of Trump.

Here’s Giuliani saying much the same thing:

George Stephanopoulos: The letter also cites the president’s pardon power. Do you and the president’s attorneys believe the president has the power to pardon himself?

Rudy Giuliani: He — he’s not but he probably does. He has no intention of pardoning himself but he probably — not to say he can’t. I mean, that — that’s another really interesting constitutional argument, can the president pardon himself.

George Stephanopoulos: Do you think it’s an open question?

Rudy Giuliani: It would be an open question. I think it would probably get answered by gosh, that’s what the constitution says and if you want to change it, change it. But yes.

George Stephanopoulos: A lot of focus on the president…

Rudy Giuliani: I think the political ramifications of that would be tough. Pardoning other people is one thing, pardoning yourself is another. Other presidents have pardoned people in circumstances like this both in their administration and sometimes the next president, even of a different party will come along and pardon.

ABC’s news team later made hay with Giuliani’s interview while taking great pains to argue that most in the political class and in the media don’t believe that Trump can pardon himself.

They even brought out the aforementioned Dan Abrams, who made no mention of his piece discussing whether or not Hillary Clinton could pardon herself, and former New Jersey Governor (and lawyer) Chris Christie. Neither of them were willing to agree with Giuliani that Trump could pardon himself, if need be.

CNBC had a variety of legal professionals weigh in on the question.

Here’s a “maybe”:

Nicholas Gravante, Jr., partner at the law firm of Boies Schiller Flexner
“I’m not sure that there’s a definitive answer,” Gravante told CNBC. “The notion of somebody taking office and then being able to pardon themselves for things they have done while in office would give any president the freedom to act lawlessly and then simply be allowed to pardon themselves from the consequences of such actions prior to leaving office. In effect, the president would be not subject to the rules of law. and this is a country that is governed by the rule of law.”

Here’s a “no”:

Richard Painter, former chief ethics lawyer to President George W. Bush
“He absolutely cannot pardon himself,” Painter told CNBC. “I do not know of an instance in human history in which a king has pardoned himself. The pope does confession to another priest. A pardon is by its very nature when one person pardons another. The point is, the constitution uses the word pardon, and a pardon is by very nature a situation that involves two people, or between God and a human being. We even say ‘Forgive us our trespasses,’ in The Lord’s Prayer.”

And here’s another “maybe” that leans towards a “yes”:

Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School
“The constitutional arguments about self-pardoning are … complex, and no one should have strongly held views about the correct analysis,” Tushnet told CNBC. “That said, my view is that the weight of the arguments lies in favor of finding that the president has the power to self-pardon, because of the president’s power to ‘take care that the laws be faithfully executed.’ This gives the president a great deal of discretion about initiating and terminating investigations, coupled with the absence of express limitations on the pardon power (other than barring pardoning in cases of impeachment, which isn’t, technically, a criminal proceeding). But, as almost everyone also acknowledges, exercising the power to self-pardon would almost certainly trigger sufficient public outrage to make impeachment a realistic possibility — or, put another way, exercising the power to self-pardon, if the president has it, would be extraordinarily politically unwise (ordinarily). But, again, we aren’t in ordinary times, and perhaps a self-pardon wouldn’t trigger that reaction in the present circumstances.”

Interestingly, CNBC found a lot more opposition to a Trump self-pardon, than anyone found to a Bill or Hillary Clinton self-pardon.

It’s almost as if the media would be okay with the Clinton’s pardoning themselves, but are fully opposed to Trump doing the same.

Article posted with permission from Constitution.com. Article by Onan Coca.

The Washington Standard

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