I don’t mean to say that President Donald Trump will not attempt it. He very well might.
I also don’t mean to say that it won’t be a big deal if and when he does attempt it. It will be a very big deal.
I mean, rather, that a self-pardon will not materially decrease the likelihood of his attempted prosecution by the Justice Department after he leaves office, and may even increase the chances of his indictment.
The reason has little to do with doctrine. There is a very plausible textual case that the pardon power—which the Constitution extends to all “offences against the United States, except in Cases of Impeachment”—includes, by dint of not excluding, the issuance of a pardon to oneself. The legal scholar Paul Larkin Jr. of the Heritage Foundation recently offered strong reasons not to read into text restrictions that aren’t there—reasons rooted in the absolute nature of the pardon power, which is historically a creature of royal prerogative. There are also compelling reasons to doubt the constitutionality of the self-pardon, including those spelled out in this thoughtful analysis from Frank Bowman III of the University of Missouri School of Law, which focuses on the word grant as understood in the founding era.
My argument, however, is not doctrinal, but premised on the judicial politics involved in how a self-pardon would make its way to the courts.
To understand why a self-pardon gambit is preponderantly likely to fail, imagine the awkward circumstances in which it would realistically play out. Back in 1974, a woman named Mary Lawton articulated what has been the executive branch’s position on presidential self-pardons ever since. Lawton was then the acting director of the Justice Department’s Office of Legal Counsel, which is the guardian of presidential power, the office responsible for interpreting the law on behalf of the executive branch in a fashion that protects executive prerogatives. As such, the OLC tends to take expansive views of presidential authority within the confines of reasonable legal interpretation. Yet during the Watergate era, Lawton wrote that the pardon power does not permit a self-pardon: “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative,” she held for the department. [ed. emphasis added] To my knowledge, her opinion has not been withdrawn during the Trump administration, though it is certainly possible that the OLC has done subsequent work on the subject and kept it secret.
The president does have the authority to overrule the OLC, or to just ignore it, so the fact that the Justice Department has long held that he may not pardon himself isn’t a real impediment—except in one important optical sense: The courts, including the Supreme Court, would know that Trump was taking a position far more radical than the executive branch ever has on this matter. Indeed, they would know that he was taking it in contrast with a long-standing Justice Department position.
What’s more, the courts, and ultimately the justices, would know that the Justice Department had—within days of Trump’s self-pardon—reverted to its traditional view. President-elect Joe Biden takes office in only two weeks. He will surely adopt the view that the president may not pardon himself. So the Justice Department under him will undoubtedly argue, representing both the current president and the traditional position of the executive branch, against the self-pardon. Meanwhile, the former president will have taken a position that radically outflanks that of the traditional guardian of presidential power, in a self-serving view of the pardon power that held sway in the executive branch for all of two weeks.
That’s not a good look.
This brings me to a second awkwardness: the facts.
A self-pardon, after all, matters only if the Justice Department tries to investigate or prosecute Trump. Otherwise, it’s quite literally just a piece of paper. The department can contend that it is not a valid piece of paper. The new president can say so as well. And Trump can contend that it is valid. But without an attempted investigation or prosecution, Trump’s action will face no test. It will not set the precedent that the president can pardon himself, merely that he can try to do so—and we already know that. (...)
The first point here is that given the possibility of such a case, the self-pardon would function almost as a taunt to the Justice Department. A pardon given to anyone else would abort an incipient investigation immediately; all the investigative subject would have to do is plead the pardon if indicted, and a court would dismiss the matter. But a self-pardon is different. It presents one of the great open questions of constitutional law, and if the Justice Department backed down from investigating or indicting because a subject had pardoned himself, it would effectively be acknowledging the former president’s power to issue a pardon over the current president’s insistence on the traditional executive-branch position.
by Benjamin Wittes, The Atlantic | Read more:
Image: Getty/The Atlantic
[ed. Quite a crash course in constitutional law. By the end of the year we'll all be epidemiological and legal experts. See also: What is Sedition? (NYT)]
