US Presidential Self Pardon - legal challenge proceedings

With George W. Bush’s term nearly up, there’s questions in the air about a possible self pardon.

Nixon, George H.W. Bush, and Clinton all considered this but didn’t.

Looking around at various sources, there doesn’t seem to be a clear consensus on whether the US president can pardon himself.

So, in the case that Bush does pardon himself, how exactly would this self pardon be challenged? Would charges have to be brought, dissmissed, and appealed, or what?

May I please politely request some citation for your statement that Nixon, Bush sr. and Clinton considered self pardons.

FWIW, I remember contemporary Newsweek articles as to each of those three considering self-pardons in the last days of their respective presidencies.

As the OP notes, there’s no legal consensus as to whether or not a president may pardon himself. You will find equally strong opinions, and equally little black-letter law, on both sides of the question. I’m of the “Yes, he may, but it would be a very, very bad idea” school of thought. The pardon power is virtually unlimited. The Constitution doesn’t say he can’t pardon himself. In a democracy, what is not prohibited is permitted.*

I don’t know who would have legal standing to challenge a self-pardon. The prosecutor or independent counsel who had the president in her crosshairs, maybe? Doubtful. A self-pardon, crass and self-serving as it would be, would stand up if ever challenged in court, I think.

*And, as the old saying goes: in a dictatorship, what is not prohibited is compulsory.

I suspect the prosecuting authority would have standing to challenge the pardon, but as you say, not a very good case. In fact, the prosecutor obviously wouldn’t need to collaterally attack the pardon. The prosecutor could seek an indictment, ignoring the pardon. And of course, the trial judge, if of the can’t-do-it persuasion, might simply deny any Presidential motions based on the pardon, which would put the President in the position of having to defend the pardon in an appellate court.

And of course, pardons don’t insulate the pardonee from violations of state law. So a self-pardon still leaves the President vulnerable to prosecution by state authorities.

Whether Clinton considered a self-pardon or not, it was discussed in the media: No self-pardon for Clinton, says spokesman

Regarding Nixon:

Again, this doesn’t prove that Nixon thought about it, only that Haig discussed it with Ford. But it was discussed.

This sounds right to me-if a prosecutor was going to ignore the pardon, my guess is he’d go ahead and ignore it, and even in the district court, I would suspect that the defendant would be the one who’d have to show that

  1. he was pardoned-i.e. that the appropriate authority issued a pardon.
    1a) that the pardon was effective. Usually, a slam-dunk. Here, this would be the issue. (historical note: a pardon can’t be given without the pardonee’s permission-it’s got to be accepted–so it might come up in other contexts).
  2. for the crimes in question (I might guess this is usually the question when the issue of a questionable pardon comes up-defendant has been pardoned for something–but does it cover the crime in this prosecution)

It’s, er, complicated. See

and Gfactor's presidential immunity column - Cecil's Columns/Staff Reports - Straight Dope Message Board (some discussion of conditionla pardons and other fun)

I thought the real issue was whether acceptance came with an admission of guilt (which your other post describes the status of burdick well)-but that the question of whether one could refuse one was clear (if not tested in a long time)-as you note, that pre-dates Burdick.

The pardon power is truly plenary, and the constitution doesn’t say anything either way about acceptance.

I might be biased in favor of an acceptance theory because the prez has the alternative-- under a unitary executive theory, of orderingr his AG/USAs not to prosecute any individual even if incredibly guilty, and even if they refused to accept any pardon (see, e.g. the result of miers ignoring a subpoena from a federal judge–regardless of the merit of her privilege claim, that’s not how you assert one). But that wouldn’t protect from a new president–only a pardon would.

What’s usually overlooked in these discussions is the SCOTUS ruling in Burdick v. United States. The 1915 case held that pardons have to be affirmatively accepted by the receiving party to take effect (Burdick refused his) and that doing so carried with it an admission of guilt.

I think it’s 100% unlikely that a President or anyone else would take this option on the theory that they might be charged with some crime in the future. If there was a conviction or there were charges pending, that’s a different story. But neither GWB or any of his cronies are going to acknowledge committing war crimes (or whatever) just to take a pardon.

(on preview, I see that GFactor referenced the Burdick decision above… he’s right that Burdick is shaky, but I think the principle still applies. A pardon has to be for specific acts, and the issuing of a pardon implies merit to charges that haven’t been officially made. Clinton and Nixon had specific charges floating over their heads. Bush does not, and won’t.)

Cite? :smiley:

Nixon, I guess I would have suspected, though I haven’t seen anything concrete yet. Clinton being discussed in the media doesn’t count to me as solid evidence.

What did Bush do that would have been considered improper enough for a pardon?

This will inevitably turn into a Great Debates discussion, and it’s not really on point for the question asked by the OP. I get that the OP made that factual claim, but the question is about what procedures for challenging a self-pardon. Let’s keep this thread about that, and if you want an answer to the question I just quoted, go ahead an start a thread in Great Debates.

**Gfactor **
General Questions Moderator

Even if there is some doubt about whether he can pardon himself, there’s no doubt that he can pardon anybody else for anything. What that means is that Bush could pardon Cheney for any crimes he may have committed, then resign from the Presidency the day before his term expires, then let President Cheney pardon him. Voila, problem solved!

If he were to pardon himself, couldn’t Congress immediately use whatever he pardoned himself for as grounds for impeachment? The pardon power doesn’t have many limits, but he does have that one: It can’t be used in cases of impeachment.

I wrote a staff report that explored possibilities like this, but it’s currently disappeared into the ether.

Ah, here it is: Straight Dope Staff Report: Who has the power to arrest the President?

Yes, he can be impeached, at least while in office and probably after his term has expired.
And as I pointed out above, he also can’t avoid prosecution for violations of state law.

Thanks for the suggestion…I started the thread in Great Debates…though I would have thought Bush 41 was pretty noncontroversial for a Great Debate.

Here’s a link to that thread, for those who are interested. Bush Sr. pardoning himself?? - Great Debates - Straight Dope Message Board

Well, it could be a blanket pardon, you’re right. Ford’s pardon of nixon was for any crime he committed while in office (I’m paraphrasing.). It could also be for unspecified individuals that committed a specific act, like Johnson’s pardon of confederate soldiers or Carter’s pardon of draft dodgers.

But in either case, there is still a tacit acknowledgment of guilt. And that makes the whole thing very unlikely.