Will Trump Pardon Himself, or Resign and Get President Pence to Pardon Him?
By: Dr. Zach Zachariah
Tags: Politics, Law, Pardon, Donald Trump, USA

Will Trump Pardon Himself, or Resign and Get President Pence to Pardon Him?

Consider a scenario of a President Pence refusing to pardon Trump.

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President Trump has issued 29 pardons and 16 commutations until December 21, including a full pardon for his first national security adviser, Michael Flynn, and Roger Stone, whose sentence he commuted. Every person who has received clemency from the President is either known to him personally or has powerful connections lobbying on the person’s behalf.

According to a report on CNN, President Trump is considering pardons for more people. Trump is considering granting clemency to Allen Weisselberg, the chief financial officer of the Trump Organization, who has come under scrutiny for his role in hush-money payments. Trump’s attorney, Rudy Guiliani, already under federal investigation, is expected to receive a preemptive pardon.

Tuesday, Trump granted clemency to 20 people, including three former Republican congressmen, four Blackwater contractors convicted of killing civilians in Baghdad, and two men convicted in the Muller probe of Russian interference. Trump granted more pardons and clemency, 29 in total, on Wednesday. Those pardoned include, two former advisers, Paul Manafort and Roger Stone, and Charles Kushner, son-in-law Jared’s father.

One question that frequently comes up is whether Trump will pardon himself and his family. Sean Hannity of Fox News, a Trump ally, has advised the president to pardon himself and his family. The president himself has claimed in a Tweet, “I have the absolute right to PARDON myself.” Trump is said to be contemplating a preemptive self-pardon. Such a possibility has generated considerable discussion among constitutional scholars. While a few think that the president’s pardon power is absolute, the predominant opinion is that the pardon clause’s language, although broad, does not unambiguously include the president himself. Such a decision, if taken by the president, could face legal challenges.

Andrew Weissmann, a lawyer who worked in the Robert Mueller team that investigated Russian interference in the 2016 U.S. elections, made a case for the incoming Biden administration to investigate Trump and, if warranted, prosecute him for potential federal crimes. He expressed his opinion in the New York Times with this conclusion, “being president should mean you are more accountable, not less, to the rule of law.”

I have taken classes in law, but I am not a lawyer. This essay is my attempt to unpack legal opinions in a simple yet understandable manner. First, let’s examine legal views that agree with the notion that the president’s pardon power is absolute and, therefore, Trump can pardon himself.

Jonathan Turley, a constitutional scholar, who testified at the impeachment proceedings of President Trump, thinks that Article II, Section 2 of the Constitution defines the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Since no language specifies who may or may not be pardoned, the president has the power to pardon any person for any federal crime. Turley also opines that, although Trump can pardon himself, he should not do so because such a step would significantly abuse his authority. A self-pardon would be constitutional, but it would be wrong.

Preet Bharara and Anne Milgram expressed a somewhat similar opinion in their Cafe Insider Podcast of December 1, 2020. Bharara served as the U.S. Attorney for the Southern District of New York, and Milgram was the Attorney General for the State of New Jersey. They believe that “the power of the pardon is absolute and he [the president] should be able to pardon anybody that he wants to.” They think that Trump’s action would be broad, and he would include the taxes and the bank fraud pieces from the federal system. That decision could be challenged in court if a federal prosecutor brings a criminal case against Trump, and he asserts the pardon as a defense.

Now let’s examine the opposing legal opinions that consider the pardon power is not absolute, and the framers of the Constitution never envisaged a president pardoning himself. Laurence H. Tribe, Harvard University Constitutional Law Professor, Richard Painter, Bush White House ethics lawyer, and Norman Eisen, Obama White House ethics lawyer, penned an opinion piece in the Washington Post. They base their argument on the Legal Counsel memo of August 1974 from the Justice Department on self-pardon by a president: “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.” Richard Nixon facing impeachment did not pardon himself. President Gerald Ford pardoned Nixon in part because he believed the prosecution is not in the national interest. These lawyers conclude that “Trump — without being a first in all of human history, cannot pardon himself.”

Lawrence Tribe, in an interview on the MSNBC program, the Last Word with Lawrence O’Donnell, makes almost the same argument and expands on it. If a jurist applies the originalist view, the interpretation will begin on Article II, Section 2. However, instead of stopping at Section 2, it will go on to Section 3, which says that the president’s responsibility is to “take care that the laws be faithfully executed.” The section does not exclude criminal laws. If, as President Trump claims that he can pardon himself, then it follows that he does not have to follow laws. He will not be below the law; he will be above the law.

J. Michael Luttig, Assistant Attorney General for the Office of Legal Counsel under George H.W. Bush, offered three reasons why the president lacks the power to pardon himself.

The language of the pardon power itself is ambiguous. The Constitution’s Framers who contemplated the president’s impeachment provisions thought he would not violate the criminal laws with impunity. Pardoning himself for any and all crimes against the United States that he committed would grievously offend the constitutional principle that no man, not even the president, is above and beyond the law.

Three legal scholars, Stanley Arkin, Karen J. Greenberg, and Michel Paradis, provided this perspective in a column in the Washington Post about a president’s self-pardon.

A presidential pardon is a kind of deed. Like the deed to a house, it must be given and received, delivered, and accepted. Without two parties, it is both illogical and illegal.

Charlie Savage, a national security and legal policy correspondent, wrote in the New York Times about the president’s power to grant pardons. The founders’ use of the word “grant” should be interpreted as meaning one person giving something to another. Based on that interpretation, a president cannot grant a pardon to himself.

CNN legal analyst Elliot Williams pointed out, a self-pardon would, in effect, be admitting some form of guilt. “A pardon is in effect an acknowledgment that wrongdoing or a chargeable crime has happened. So he wouldn’t just be looking guilty, he’d be acknowledging that he committed an offense.”

An analysis by Zachary Wolf of CNN looks at other options available to Trump.

Like Nixon, Trump could resign and hand power in his final days to Vice President Mike Pence, who could pardon him. He could also temporarily hand power over to the vice president under the 25th Amendment and let Pence, as acting president, pardon him.

If either of these options is exercised, it could also open Pence up to allegations of bribery if he and Trump had a pardon agreement in place. Pence would be receiving something of value — the presidency, even for a short time — in exchange for an official act.

No one is privy to Vice President Pence’s inner thoughts about a presidential pardon. He appears to be unflinchingly loyal to his boss and touts the official lines at public gatherings. If Trump follows through with his talks to run for president again in 2024, then Pence has to curtail his desire to run for the presidency unless he wants to challenge Trump in the primary.

Having examined the legal arguments for and against a self-pardon, I like to throw in a plausible scenario. Suppose Trump makes a tacit arrangement with Pence to resign on January 20, 2020, allowing the Vice President to become President, giving him enough time to hand Trump a full pardon. Newly sworn-in President Pence considers the ramifications and decides not to grant a pardon to his predecessor. By throwing Trump under the bus, Pence can retain his reputation with traditional Republicans and the Evangelical base and run for election in 2024. That will be the ultimate revenge to Trump, who treated his vice president as his lapdog.