A Dec. 13 Legal Matters column on whether a U.S. president can pardon himself before leaving office prompted an, “I don’t feel like you addressed the question very well” comment from a reader.
All right, let’s try again.
The question of self-pardons may remain a subject for late-night debates until a sitting president attempts to pardon himself. If one does, and the action is challenged in a lawsuit, the Supreme Court would be the final arbiter. The question arose most recently after President Donald Trump suggested in a tweet that he might pardon himself.
When Trump leaves the presidency Jan. 20, he faces a criminal investigation in New York into actions taken by his real estate company, the Trump Organization, and unrelated possible legal consequences that may arise from allegations that women who had sexual relations with Trump received “hush money” payments to keep silent. The payments may be prosecuted as campaign finance violations because the money reportedly came out of Trump’s campaign funds.
Trump claimed, “the absolute right to pardon myself,” in his tweet posted June 4, 2018, that read, “As has been stated by numerous legal scholars, I have the absolute right to PARDON (his emphasis) myself, but why would I do that when I have done nothing wrong?” The tweet did not identify any legal scholars Trump may have relied on for his claim.
No president has yet attempted to pardon himself in advance before leaving office, whether for a situation that involved charges that have not yet been brought or convictions that have not been adjudicated.
The most recent example of a president pardoning a former president occurred in 1974 when Gerald Ford pardoned his predecessor, Richard Nixon. Nixon faced charges of obstruction of justice for attempting to impede the investigation of the break-in into Democratic party offices in the Watergate complex. Ford, who was vice president, succeeded to the presidency after Nixon resigned in 1974.
If Trump attempts to pardon himself, and the action is challenged, a decision on whether a president has self-pardoning power under the U.S. Constitution would rest with the Supreme Court.
A Supreme Court ruling from 1865 makes clear that a president has broad pardon powers, and may pardon others even when those benefiting from the pardon have not been charged or convicted of an offense.
“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment,” the court said in an 1865 case. “It extends to every offense 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. The power is not subject to legislative control.”
The 1865 case involved a law that barred any attorney from practicing in federal court if he had taken up arms against, or aided anyone who was fighting, the U.S. government. It was intended to bar lawyers who supported or were involved with the Confederacy.
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Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at email@example.com.