I can’t see anything here prohibiting a President from pardoning himself. And I confess I’m perversely looking forward to watching Ryan, McConnell, and other GOP leaders explain, after Trump does this, why this is really no big deal, nothing to see here.
But to the extent that it was discussed in 1974, whether a President could self-pardon was treated as an open question. I can’t remember why, though.
The President cannot, as you point out, pardon himself from being impeached. Only after successful impeachment and conviction in the Senate would he face criminal charges, at which point he would no longer be the President.
He could try to pardon himself in advance, of course, of being impeached, through the sort of vague pardon Ford gave Nixon. But were he to do so, in he accepted his own pardon, he would implicitly be admitting guilt and probably surrendering his fifth amendment privilege, thus making it a thousand times easier for him to be impeached.
This is why we need an amendment. The main problem that I had with Ford’s pardon of Nixon is that we didn’t get a trial and see precisely what Nixon would have been found guilty of. To see scum like Kushner walk away from any prosecution simply because he’s banging the daughter of the guy in the White House is repugnant.
This is a mistake that the founders made, unfortunately the only way to fix it is by amendment. The president should not be able to pardon himself, nor should former presidents be eligible for pardons for crimes committed as president.
The pardon would preclude the prosecution in the first place. All he has to do is assert that he’s been pardoned of any possible crime that might be charged. He’s not admitting anything in the process.
Except that there would be political consequences to doing that. It would have a very negative impact on the public perception of the president which would affect their ability to get anything done even if they were lame ducks.
In the sense of the defendant not having to worry about being sentenced, yes. But surely a pardoned person could be tried to determine whether or not he’d committed a particular crime.
Sure, theoretically a waste of public money and all that, but I think our public money would have been well spent to nail down whether or not Nixon was guilty of obstructing justice, or whether the Iran-Contra defendants that Bush Sr. pardoned on his way out the door were guilty of the crimes they were charged with, regardless of the absence of non-reputational consequences of being found guilty.
Y’know, this concern has pretty much lost its punch in recent months, what with the election of a guy who shows little concern for getting anything done by voters who think negative public perception by other voters is a good thing.
Contrariwise, impeachment can only remove a person from office and/or bar them from future officeholding. And it certainly isn’t settled law that a President can only be tried for a crime while they still hold office, it’s a murky question.
In no case will a prosecutor bring charges against someone who has been pardoned, just to establish the truth about what happened. The courts are there to resolve disputes, not establish facts or create a public record.
If we need to dig out the truth of what happened then Congressional hearings or a Commission is what we need, like the Commission that investigated the Challenger disaster. Facts uncovered during such an investigation might or might not lead to prosecution of various people, but a pardon would be an absolute bar to any such prosecution.
And of course lots of things can also be crimes under various state laws. So if you break into a hotel room to steal stuff you can be prosecuted under the laws of the state where that second rate burglary took place, and the President has absolutely no power to pardon you for that crime. In most states the Governor has the power to pardon, in the others some other official board has the power to pardon state crimes.
The counterpoint to this, per some legal experts, is that by definition a pardon is something you can only give to someone else (from WP article, 2nd to last paragraph).
Another interesting point is that it’s generally thought (but not tested) that while the president has the authority to grant pardons, the pardon isn’t shielded from criminal liability for abusing it (President Clinton was investigated for bribery in his pardon of Marc Rich). So if Trump pardons himself, could it be criminal obstruction of justice? But if he gave himself a blanket pardon, does that mean the pardon itself is therefore OK? It’s a recursive loop, pardons all the way down.
There was some old case where the Supreme Court opinion was that a pardon indicated guilt. So if Trump pardoned himself that could be the grounds for impeachment right there. It still needs the House and Senate to actually impeach him, and then decide to remove him from office, but the pardon itself puts a lot of pressure on them to do it. The president pardoning himself which then is an admission of guilt surely fits the concept of a High Crime or Misdemeanor since it’s something only the president could do. It’s still all a political action though, there’s no way for any other part of the government to force congress to accept the premise of guilt or start the impeachment process.