Can Trump Pardon himself?

[MSC]

Having read the constitution and finding it kind of open to interpretation how the pardon power works, I'm no closer to finding a good answer for this.

Can a President pardon themselves? Is one question.

Can the next President revoke that pardon? Is another.

Obviously we are only talking about pardons of federal charges. 

Can Trump even pardon himself for a federal charge that has not been formally filed yet? 

If so, where does it end? Why shouldn't every president end their time with giving themselves a pardon for any federal crimes they may have committed while in office? 

It all seems so confusing to me. If it is the presidential office giving out the pardons, what is to stop Biden from revoking any pardon given by Trump to himself or others?

[iNow]

16 minutes ago, MSC said:

Can a President pardon themselves?

As you noted, it’s open for interpretation and we don’t yet know. 

16 minutes ago, MSC said:

Can the next President revoke that pardon?

No. 

[michel123456]

On 11/26/2020 at 2:46 AM, MSC said:

Having read the constitution and finding it kind of open to interpretation how the pardon power works, I'm no closer to finding a good answer for this.

Can a President pardon themselves? Is one question.

Can the next President revoke that pardon? Is another.

Obviously we are only talking about pardons of federal charges. 

Can Trump even pardon himself for a federal charge that has not been formally filed yet? 

If so, where does it end? Why shouldn't every president end their time with giving themselves a pardon for any federal crimes they may have committed while in office? 

It all seems so confusing to me. If it is the presidential office giving out the pardons, what is to stop Biden from revoking any pardon given by Trump to himself or others?

There was a scenario in which Trump resigns. Then the vice-president becomes the President & eventually could pardon him.

This would be awkward. Not to say how can you pardon someone before this someone has been convicted by a court of justice.

[StringJunky]

1 hour ago, michel123456 said:

There was a scenario in which Trump resigns. Then the vice-president becomes the President & eventually could pardon him.

This would be awkward. Not to say how can you pardon someone before this someone has been convicted by a court of justice.

Pass a preemptive  law, like Putin did recently for if/when he leaves.

Edited November 27, 2020 by StringJunky

[John Cuthber]

5 minutes ago, StringJunky said:

Pass a preemptive  law, like Putin did recently for if/when he leaves.

It's usually accepted that no decision is binding on a future government.

Amongst other things this shows that Boris passing a law to say he couldn't change his mind about Brexit was a petty-minded  posturing waste of time.

However, in a world like we have at the moment, all bets are off.

Maybe Boris will pardon Trump and vice versa.

[dimreepr]

1 hour ago, John Cuthber said:

Maybe Boris will pardon Trump and vice versa.

Either way they'll be spending a lot of time in an embassy...

[John Cuthber]

23 minutes ago, dimreepr said:

Either way they'll be spending a lot of time in an embassy...

In Moscow. perhaps?

[dimreepr]

2 minutes ago, John Cuthber said:

In Moscow. perhaps?

Who are we kidding? Moscow doesn't have room...

[MSC]

3 hours ago, dimreepr said:

Who are we kidding? Moscow doesn't have room...

No, but Russia has room for everyone. Hell, it's why they are so protective of themselves and put so much effort into diversion and division of their perceived enemies. 

The paranoia that comes with having a massive border is staggering.

6 hours ago, michel123456 said:

There was a scenario in which Trump resigns. Then the vice-president becomes the President & eventually could pardon him.

This would be awkward. Not to say how can you pardon someone before this someone has been convicted by a court of justice.

The thing that interests me about this scenario; if Pence pardoned Trump, does Biden have to honour that pardon?

INow said no, but didn't explain why or point to evidence. So it's still up in the air as far as I am concerned.

[swansont]

7 hours ago, michel123456 said:

 This would be awkward. Not to say how can you pardon someone before this someone has been convicted by a court of justice.

That would seem to be immunity, but I don’t know if there’s a legal distinction. However there is legal precedent, in that Ford pardoned Nixon, who had not been convicted. I don’t know if anyone tried to challenge it on those grounds.

The Constitution makes an exception to the pardon power for impeachment, so it may be that any crimes associated with his impeachment are not subject to pardon, even though he was not convicted.

Pardons carry with them the implication of guilt, according to SCOTUS

https://en.wikipedia.org/wiki/Burdick_v._United_States

The Supreme Court ruled that, as a pardon carries an imputation of guilt and acceptance carries a confession, Burdick had the right to reject the pardon and did not have to testify due to his Fifth Amendment right against self-incrimination. The Court declined at the time to answer the question of whether the pardoning power may be exercised before conviction

You might have the curious situation where Trump might be forced to list his crimes. What if he refuses to admit to them? Would that count as refusing his own pardon?

 

[iNow]

2 hours ago, MSC said:

INow said no, but didn't explain why or point to evidence. So it's still up in the air as far as I am concerned.

The concept here is similar to double jeopardy, something US citizens are directly protected against via the 5th amendment to our constitution.

Once the pardon is granted, then new criminal charges would need to be brought for any additional or new punishments to apply.

The pardon lifts the penalty itself and (much like you can’t just magically put someone back into jail after they got out early for good behavior unless they happen to break parole or commit an additional crime), Biden also can’t just magically “unpardon” someone... The pardon transaction was completed and (despite what Trump is trying to make people think) presidents are not kings who can simply circumvent the justice system at will.

[John Cuthber]

If he was never tried but was pardoned- perhaps by Pence or even by himself- then there was no jeopardy in the first place.
So, it wouldn't be double jeopardy.
 

However, the point is substantially moot.

He can be pardoned for federal crimes.
But he has apparently committed so many other crimes that he would never get out of jail except to testify in another trial against him.
And he would also be open to any number of lawsuits about his actions before, during and probably after his presidency.

 

[MSC]

9 minutes ago, iNow said:

Once the pardon is granted, then new criminal charges would need to be brought for any additional or new punishments to apply.

What about new evidence? What about preemptively pardoning before a charge has even been brought? Which would be the case if the Trump resigning to Pence scenario were to come to pence. It seems to me that without Trump essentially being willing to say he did infact commit federal crimes, then the pardon given by Pence would essentially just be a catchall from the period where Trump's presidency began and ended, on the assumption of a guilty verdict in a trial that has not taken place yet nor any formal process to federally charge Trump begun. 

Thank you, the rest of your answer clears up some of the things I was wondering about. 

I have another question about something related; Do you think Fords pardon of Nixon was unconstitutional? As far as I can make out from the Constitution, the pardon power does not give the president the authority to pardon for crimes that would have led to impeachment. The reason Nixon resigned was that he knew he would have been impeached otherwise. It seems to me like an abuse of a technical loophole that led to Nixon escaping true justice via a President who did not really have the authority to pardon for Nixon's impeachable offenses. However I'm not a lawyer so my interpretation should be taken with a grain of salt. It's just how it appears to me at this time.

 

[swansont]

18 minutes ago, MSC said:

I have another question about something related; Do you think Fords pardon of Nixon was unconstitutional? As far as I can make out from the Constitution, the pardon power does not give the president the authority to pardon for crimes that would have led to impeachment. The reason Nixon resigned was that he knew he would have been impeached otherwise. It seems to me like an abuse of a technical loophole that led to Nixon escaping true justice via a President who did not really have the authority to pardon for Nixon's impeachable offenses. However I'm not a lawyer so my interpretation should be taken with a grain of salt. It's just how it appears to me at this time.

 

Article II says “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

To me that says he can’t pardon someone for crimes for which they were impeached, and he can’t undo an impeachment. I’m not sure what the court would say it means.  

 

[iNow]

1 hour ago, MSC said:

Do you think Fords pardon of Nixon was unconstitutional?

No

1 hour ago, MSC said:

It seems to me like an abuse of a technical loophole

If the hole in the loop is there, it can be used until closed... regardless of whether someone might consider it an abuse. 

From the NYTimes in 1975, a judge ruled that Fords pardon was constitutional based in part on his reading of Hamilton’s words in Federalist paper 74:

https://www.nytimes.com/1975/03/30/archives/judge-upholds-pardon-of-nixon-under-power-to-calm-rebellion.html

Quote

A Federal judge sitting in President Ford's hometown has ruled that Mr. Ford's pardon of former President Richard M. Nixon was constitutional.

District Court Judge Noel Fox said yesterday that Mr. Nixon had been a “putative rebel leader” whose Administration had been engaged in “an insurrection and rebellion against constitutional government itself.”

He said that because Mr. Nixon and his aides were in rebellion and United States Supreme Court decisions give the President vast leeway in handing out pardons, Mr. Ford's pardon was not only constitutional, but a “prudent public policy judgment.”

The ruling came as the result of a suit filed by a Marquette lawyer, F. George Murphy, urging the judge to declare last fall's pardoning of Mr. Nixon void and unconstitutional.

 

Edited November 27, 2020 by iNow

[MSC]

30 minutes ago, iNow said:

District Court Judge Noel Fox said yesterday that Mr. Nixon had been a “putative rebel leader” whose Administration had been engaged in “an insurrection and rebellion against constitutional government itself.”

But he wasn't a rebel leader, he was the leader of the United states. It does not alter the fact that at the time, Nixons rebellion could only be handled via impeachment. You cannot impeach a rebel leader, you can absolutely impeach the recognised leader of the executive branch, which is what Nixon was. 

Furthermore, Nixon was the head of one of the branches of the constitutional government and his crimes involved targeting the out of power opposition. 

Did Murphy ever try to appeal the district court decision with the circuit courts or SCOTUS? This district judges dismissal of the case seems to rest on the basis that Nixon was to be viewed as a Rebel leader, yet when he committed the crimes he was the president of the united states. Not a rebel. It does not change the fact that at one time, Nixons offenses were deemed as impeachable. Therefore Ford should not have been able to pardon those crimes. 

As Swansont says, a pardon is tantamount to a confession in order to accept said pardon. By accepting it, Nixon was confessing to impeachable offenses at the time the offending acts were committed. Which would put it outside the broad definition of the presidential pardoning power. 

I suppose, the only reason I brought it up; I can't help but wonder about whether or not someone like Trump would have been deterred from seeking office if the whole book had been thrown at Nixon?

I can't help but wonder if by not throwing the book at Trump, the US would just be enabling someone like Trump to try again, since even an attempt to overthrow the United states can ultimately be forgiven, all because no one wants to send a "rich" man to jail. 

Another question that comes to mind, if accepting a pardon is tantamount to confessing guilt, can a pardoned individual run for President?

Edit: In case it has not been made clear, I ask out of deep concern that Trump or another Populist despot will have us all back to these worries in the future. I detest Trump and never want to see his like again while me and mine are still alive.

Edited November 27, 2020 by MSC
Additional

[swansont]

If Nixon had been impeached, then there would be something to this.

And we knew, by and large, what Nixon’s crimes were. We don’t know all Trump’s crimes, and we are owed an accounting of them, one way or another.

[iNow]

I disagree that a pardon is a an acceptance of guilt since a president can pardon a person falsely imprisoned. 

Regardless, per the thread question, only the SCOTUS can decide and that’s why the makeup of the court and leanings of the Justices is so important. 

[swansont]

1 hour ago, iNow said:

I disagree that a pardon is a an acceptance of guilt since a president can pardon a person falsely imprisoned. 

Regardless, per the thread question, only the SCOTUS can decide and that’s why the makeup of the court and leanings of the Justices is so important. 

SCOTUS is the source of that finding. But this is where the legal difference between a pardon, clemency and immunity would matter. I suspect false imprisonment would be a case where you would grant clemency (edit: i.e. commute a sentence). If you accept a pardon, you are admitting guilt.

[MSC]

4 hours ago, swansont said:

The Supreme Court ruled that, as a pardon carries an imputation of guilt and acceptance carries a confession, Burdick had the right to reject the pardon and did not have to testify due to his Fifth Amendment right against self-incrimination. The Court declined at the time to answer the question of whether the pardoning power may be exercised before conviction

 

36 minutes ago, iNow said:

I disagree that a pardon is a an acceptance of guilt since a president can pardon a person falsely imprisoned. 

Then these two statements are at odds with one another. 

On the one side, you have the imputation of guilt and carries a confession, prior conviction.

The false imprisonment or miscarriage of justice pardon would come after a guilty conviction where the accused has pleaded innocent or changed their plea to innocent during incarceration. 

In the first pardon instance; there is an assumption that a guilty verdict will be reached in the future hence the need to pardon ahead of time instead of letting the judicial system determine whether or not you are innocent first. 

In the second; the pardon is being given after the guilty verdict has already been handed out, in the miscarriage of justice case. 

So although there is only one description of the pardoning power, there are variety of different precedents that can be set by it. 

I think what the SCOTUS decision in Swansonts comment should be taken to mean; if someone is innocent of a crime, instead of a pardon being given, or in that case accepted, they should be going ahead with their trial. If a Jury finds guilty, if the President deems it too controversial they may pardon on the basis of a miscarriage of justice.

If however the pardon is being granted in place of a charge or a conviction, it could be viewed as either a complete lack of faith in the judicial system to exonerate you (which it should be pointed out that if the President granted a pardon on this basis, the president themselves is casting doubt on that system), or an admission of guilt. Making it a Clemency based pardon, which cannot be granted for impeachable offenses. While in the presidential office, committing almost any crime is impeachable. Even shielding yourself or obstructing the investigations of such a thing is considered impeachable, that was ultimately led to Nixon resigning, it wasn't just that he'd been caught, but that he also made attempts to obstruct the investigation afterward. The crime and the obstruction could have both been separate grounds for impeachment. 

Fords pardon, amounted to an effectively endorsed obstruction of justice to determine Nixons guilt or innocence. No jury got a say in it. It was a subversion of the judicial branches right to have any say whatsoever. The verdict was being pre-emptively determined. After all, why would an innocent person feel the need to avoid court by asking for clemency in the first place? Unless they themselves are assuming a guilty verdict will be reached? Why would they think that? 

[John Cuthber]

4 hours ago, swansont said:

Article II says “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

So an offence against a particular state or individual or a company or a charity, or another country is outside that remit.

He's still looking for a retirement home where there isn't an extradition treaty...

Incidentally, fundamentally re. "Article II says “he shall have Power to grant Reprieves and Pardons for Offenses against the United States"

Why?
Why is one, potentially biased, person given authority over all courts?
How is that a good idea?

 

Edited November 28, 2020 by John Cuthber

[iNow]

4 hours ago, swansont said:

this is where the legal difference between a pardon, clemency and immunity would matter. <...> If you accept a pardon, you are admitting guilt.

Exactly right. Agree with the nuance added. 

3 hours ago, MSC said:

Then these two statements are at odds with one another

Precision of language matters here. I grouped clemency and commutation under the umbrella pardon power. I agree with the clarification Swansont shared. 

[MSC]

1 hour ago, John Cuthber said:

So an offence against a particular state or individual or a company or a charity, or another country is outside that remit.

He's still looking for a retirement home where there isn't an extradition treaty...

Incidentally, fundamentally re. "Article II says “he shall have Power to grant Reprieves and Pardons for Offenses against the United States"

Why?
Why is one, potentially biased, person given authority over all courts?
How is that a good idea?

 

Although it is laid out as legal in the constitution; I agree with the spirit of your questions. 

I think ultimately, the pardon was probably intended so that if a law saw many incarcerated, and it was later found to be an unjust law, anyone with pardoning power from state governors to presidents can expedite the release of the incarcerated. 

I could see there being grounds to pardon someone who has technically committed a crime by literal legal interpretation but in spirit really had no other choice. 

For example if someone went down for committing a crime but was later found out to be under duress/blackmailed by someone believed to be notoriously ruthless, intimidating and manipulative like a cartel.

Since I agree with the spirit of what you said; I do think that the scope of the pardon power needs to be reigned in and more clearly defined and I'd feel more comfortable if I knew there were set criteria for pardoners to meet before granting any pardon. 

As for a president pardoning another president for crimes they committed while in office, I see it as a bit of a conflict of interests for any president to give pardons to their predecessors. No President should be entitled to set their own precedents when it comes to interfering with justice finding their predecessors. As it could set the standard for how their own crimes are to be perceived should they commit any themselves. 

[iNow]

2 hours ago, John Cuthber said:

Why?
Why is one, potentially biased, person given authority over all courts?
How is that a good idea?

You sound like George Mason from the days of our founders. Madison countered that the Senate would be there to hear impeachment hearings should it ever come to that. Sadly, who knew our senate would be so filled by a bunch of spineless sycophants these days?
 

https://www.brookings.edu/blog/fixgov/2018/07/25/the-pardon-power-and-original-intent/

Quote

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,

“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”
<snip>

Was there a danger in giving the president the power to pardon? “Yes,” replied Madison, but there was a remedy for the danger in the Constitution as drafted.

“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

Impeachment, in other words, can start, not when the President has been formally charged with a crime; he can be impeached if there are “grounds to believe” that he might “shelter,” that is to say, protect with a pardon, someone with whom he is connected “in any suspicious manner.”

 

8 minutes ago, MSC said:

; I agree with the spirit of your questions. 

One could equally ask why a corrupt judge should be given such authority, too... and argue that the executive pardon power offers an equal balance and check on that

[zapatos]

2 hours ago, John Cuthber said:

So an offence against a particular state or individual or a company or a charity, or another country is outside that remit.

 

What it is saying is that a pardon can protect you from a trial by the courts, but it cannot protect you from a trial by the Senate (an impeachment).

Trump may have been found 'not guilty' of breaking the law in his impeachment trial, but that does not mean he would not be found guilty of breaking that very same law in a criminal trial. A pardon given to Trump would protect him from that criminal trial.