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Can Trump pardon himself? Stay tuned.

FILE: President Donald Trump participates in a video teleconference call with members of the military on Thanksgiving, Thursday, Nov. 26, 2020, at the White House in Washington. (AP Photo/Patrick Semansky)

Does a US president have the power to pardon himself? The legal and constitutional ability of a president to pardon himself is an unresolved issue. 

The president has the power to completely set aside the punishment for any and all federal criminal offenses under the authority of Article II, Section 2, Clause 1 of the U.S. Constitution.

A president’s pardon power is limited to “offenses against the United States” and not violations of state,  civil or local law. Also, under the US Constitution (Article II Section 2): The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.

A presidential pardon also offers the recipient restoration of any rights that were rescinded for a federal conviction, such as the ability to own a firearm.

But should Mr. Trump pardon himself? A big-name supporter thinks so.

Fox News host and Trump ally Sean Hannity suggested the president should pardon himself, saying on his Nov. 30 radio show, “The president out the door needs to pardon his whole family and himself.”

Conservative attorney and former Trump lawyer Sidney Powell who was a guest on the show said: “It is absolute, it’s in the Constitution. I don’t know about his authority to pardon himself, but it should not be necessary, and aside from that, the president is going to get another four years in office.”

No precedent

Legal experts disagree about whether Mr. Trump could pardon himself — and no president has ever tried.

The Supreme Court has never ruled on whether a president can pardon himself. It would almost certainly set off a legal battle if Mr. Trump tried to do it.

If he did and was later indicted, it could create an opportunity for the Supreme Court to resolve the question.

In 2018, Trump tweeted he had the “absolute right” to pardon himself during Special Counsel Robert Mueller’s probe into Russian interference in the 2016 election.

 

In a 1998 House Judiciary Committee hearing about the proposed impeachment of then-President Bill Clinton, Rep. Bob Goodlatte, R-Va., stated, “The prevailing opinion is that the president can pardon himself,” according to The New York Times.

But under the fundamental legal rule that no one may be a judge in his or her own case, it would seem that the question of a president pardoning himself would be no.

In the past, the official position of the executive branch was that a president could not self-pardon. A self-pardon would run afoul of a bedrock legal principle in the United States, according to a 1974 memo written by the Office of Legal Counsel under President Nixon.

“Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself,” the memo declared days before President Nixon resigned during the Watergate scandal.

On Aug. 4, 1974, four days before Mr. Nixon resigned, Mary C. Lawton, who was then acting head of the Justice Department’s Office of Legal Counsel, issued a legal opinion, stating that “it would seem” that Mr. Nixon could not pardon himself “under the fundamental rule that no one may be a judge in his own case.”

In her memo, Lawton argued, however, that it would be lawful for a president to declare himself temporarily disabled, receive a pardon from the vice president, then resume his role as president.

Under such a scenario, Mr. Trump could secure his pardon by asking Vice President Mike Pence to do it for him.

Finally, and most significantly, Article II, Section 3 of the US Constitution contains the Faithful Execution Clause, commonly known as the Take Care Clause.

“[The President] shall take Care that the Laws be faithfully executed . . .”

The clause means that the president may neither breach federal law nor order his or her subordinates to do so, for defiance can’t be considered faithful execution.

So if the president could grant himself a pardon under Article II, Section 2 — and remember Mr. Trump said he had the “absolute right” to do so — he would be in violation of Article II, Section 3.

Would The Framers of the Constitution allow for such seemingly contradictory laws applying to the president? Seems not.

Will Mr. Trump try to pardon himself anyway?

Stay tuned.

 

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