Could Trump self-pardon? the world may never know

One of this week’s trending political issues is pardons, impeachments, and President Donald Trump.

It can be a very technical, difficult issue to get one’s head around, so it might be helpful to focus on four basic facts.

First: The granting of a presidential pardon is a political and not a legal matter. No one can force the president to grant a pardon, and that includes the courts.

Second: The validity of a presidential pardon, and particularly the validity of a possible “self-pardon” for the president himself, is ultimately a legal matter for the courts and therefore outside the realm of politics and elected politicians.

{mosads}Third: The process of impeachment — including the possible impeachment of a president — is a political matter for elected officials and therefore outside the realm of law and the courts.

Impeachment requires a majority vote in the House of Representatives, and conviction requires a two-thirds vote in the Senate. No court can tell the Congress what offenses are impeachable offenses and what are not; those decisions are made by each member of Congress.

Fourth: The validity of a president’s self-pardon, which has never been attempted in our history, could not be tested in the courts until after the president leaves office, either by finishing his full term of office or by removal from office through impeachment and conviction.

The Constitution gives to the president (Art. II, Sec. 2) the “Power to grant…Pardons for offenses against the United States, except in Cases of Impeachment.”

The Framers limited the pardoning power to exclude cases of impeachment, because they explicitly provided (Art. II, Sec. 4) that the president “shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”

I think it’s very significant that, although the pardoning power is expressly limited so that it does not reach cases of impeachment, it is not similarly limited to exclude pardons for offenses committed by the president himself.

That is, the Framers took care to provide that the president cannot thwart his own impeachment by pardoning himself of impeachable offenses.

But they did not similarly provide that the president cannot thwart an ordinary criminal prosecution after he leaves office by pardoning himself before he leaves office.

This suggests to me that, if the question of the validity or invalidity of a presidential self-pardon were presented to a court, the stronger argument favors validity. But, no court has ever considered that question, and we cannot be sure of the result.

Of course, some commentators think they can be entirely sure of the result. Laurence Tribe, Richard Painter, and Norman Eisen wrote an op-ed for the Washington Post, entitled “No, Trump can’t pardon himself. The Constitution tells us so.” The title says it all: these three legal scholars insist that no presidential self-pardon could ever be valid.

Tribe and his co-authors note that the Constitution explicitly provides (Art. I, Sec. 3) that an official removed from office after impeachment shall “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Tribe and his co-authors say that this provision “would make no sense if the president could pardon himself.” They are clearly mistaken.

There is, for example, no question that if a vice president were about to be convicted of impeachable offenses in the Senate, the president could pardon him or her for offenses against the United States.

Such a pardon would not in any way interfere with or deflect the impeachment process, but it would necessarily curtail any subsequent criminal prosecution after the vice president left office.

The exact same situation would exist if the president were to pardon himself before being removed from office through impeachment—the impeachment process would be undisturbed by such a self-pardon.

Whatever Tribe and his co-authors might believe, there is no provision in the Constitution that provides that the presidential pardon power cannot be exercised to pardon persons who are about to be, or already have been, removed from federal office through the impeachment process.

What the Constitution in effect says is that the pardon power cannot thwart or forestall the impeachment process itself.

It does not say that the pardon power cannot be exercised on behalf of persons who have been, or are about to be, impeached and removed from office.

Alan Dershowitz — a lawyer who, like Laurence Tribe, is on the faculty of the Harvard Law School — has very recently written an op-ed in The Hill on this very subject.

Dershowitz asserts that we simply do not know how the courts would treat a presidential self-pardon. He is certainly correct in asserting that, because this is a novel question that the courts have never considered before, no one can be certain of the outcome.

I have already indicated that, in my opinion, the stronger argument supports the conclusion that a presidential self-pardon would be found by the courts to be valid.

But, no one can be certain as to the outcome.

What is absolutely clear is that a self-pardon issued by Trump would create a political furor of enormous magnitude. Surely, he would set out on such a controversial, dangerous path only if he were sure that he was about to be convicted in the Senate of impeachable offenses and thus removed from office.

So, as a practical matter, the question of the validity of a self-pardon need never be answered, if —and I emphasize the “if” — the president can manage to avoid impeachment by the House and conviction in the Senate.

David E. Weisberg is an attorney and a member of the New York State bar. His scholarly papers on constitutional law are published on the Social Science Research Network.

The views expressed by contributors are their own and are not the views of The Hill.