The Presidential Self-Pardon

Many Presidents have brought their office into disrepute. Often, sex is involved but occasionally it is money. In the case of one President, Warren Harding, it was both. He presided over the Teapot Dome scandal and it was a well-kept Washington secret that his personal study in the White House was often used for afternoon delights. Roosevelt, Eisenhower, Kennedy and Johnson all conducted extra marital affairs, which were not disclosed until after their deaths. As for Clinton, he was not so fortunate in keeping his affairs secret and was impeached for Presidential Peckerdilloes, excuse the pun. My point is that the current occupant of the White House is not alone in engaging in personal conduct that is both un-presidential and off-putting. I shan’t go into detail. Just read my blogs for the past eight months.

Last weekend, in response to the investigation into the Russian election scandal, President Trump said he had complete power to pardon relatives, aides and possibly even himself. He tweeted that he had no need to use the pardon power at this point but left the option open. One of the tweets stated: “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.”

Two points: one, on numerous occasions I have asked if Mr Trump understands the Constitution. For example, his several complaints about the voting processes of the Senate and its power of filibuster show a lack of knowledge of political process which any first year university political student would possess. Two, why would the President mention pardons when no one has been charged, let alone indicted. As the French put it, “qui s’excuse s’accuse.”

Can a President pardon himself? A pardon is a government decision to allow a person who has been convicted of a crime to be free and absolved of that conviction, as if he or she were never convicted. In America, the pardon power for federal crimes is granted to the President. The Constitution states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include “the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties.”

The process is straightforward. All federal pardon petitions are addressed to the President, who grants or denies the request. Typically, applications for pardons are first referred for review and non-binding recommendation by the Pardon Attorney, an official of the Justice Department. Then the President decides. Bearing in mind the millions of Americans who spend their lives in jail, the pardon power is used frugally. Presidents Clinton pardoned 396, Obama 212 and George Bush Jr 74. It is a power used cautiously for good political reason. What if the pardoned criminal re-offends?

The pardon power has been controversial from the outset. Paper LXXIV of The Federalist Papers examines the subject in detail. For example, doubt was cast on whether the pardon power was available in cases of treason. Constitution legal expert, Laurence Tribe, is clear on the President’s rights. He states that the Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal.

            “The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.”

A President may conclude that even if a person has committed a crime, he acted in good faith to protect the national interest. President George H.W. Bush pardoned former Defence Secretary Caspar Weinberger in the Iran-contra affair. President Ford pardoned Richard Nixon for offences in Watergate. The President acts as a kind of super-judge, making decisions about the conduct of others. He cannot make a decision about himself. Self-pardon is impossible under the law. For example, four days before Richard Nixon resigned, his own Justice Department advised he could not pardon himself. However, the fundamental rule of law is that no one may be a judge in his own case.

 

So, I ask again, why is Mr. Trump talking about pardons? What does he know about the actions of his family and what has he done himself to bring the topic front and centre? We may be sure the media will not drop this one. Expect to hear a lot more about “crooked Hillary” ** as the President does his usual fighting back act, armed with smears, innuendo and the avoidance of fact. I suspect Trump misspoke. He was boasting about his powers and went too far but it is shocking to realise the chief executive not only knows so little about the law but fails to seek advice before he speaks.

Trump has gone quiet about the self-pardon. Instead he is tweeting his frustrations with the Senate for their failures on healthcare legislation. He also wants to ban trans-genders in the military, something which is bound to go through the courts. He seems to govern like a butterfly, hopping from one topic to another, without taking either his advisers or friends within the legislative branch into his confidence. Does he think he is a dictator, one who does not need to rely on teamwork? His new Director of Communications, Anthony Scaramucci, is also making the wrong kind of headlines in his first week in office. There is a rule in politics that when the communicator becomes the story, he has to go. For sure, we have never seen anything like this in modern American political history.

 

** I drafted this on Monday before the furore with Attorney General Sessions started. Having fired his NSA advisor and the head of the FBI, there is now talk that Sessions will go too, along with Robert Mueller, the special counsel in the Russian investigation. Any member of the executive branch serves “at the pleasure of the President” so no laws will be broken if Mueller is fired. However, politics will outweigh the law. When Richard Nixon fired Archibald Cox, the Watergate Special Prosecutor, the public outcry was the final catalyst for impeachment.