The president can pardon himself, but that does not mean he should
It seems that the subject of Donald Trump, like necessity, is the mother of invention, at least when it comes to legal analysis. From bribery statutes to constitutional provisions, experts routinely and unfailingly conclude that Trump or his family can be prosecuted or impeached for an endless array of misdeeds. Even theories denied by the Supreme Court are seen as valid when used against Trump. The same certainty was declared on whether Trump can grant himself a pardon. One of the oldest debates in constitutional law is dismissed by some of the same experts.
His role as a catalyst for clarity was evident in an interview with Harvard Law School professor Laurence Tribe, who said the idea that a president can give himself a pardon is “incoherent and incompatible” as a matter of the Constitution. Tribe has been an outspoken critic of Trump, whom he has even denounced as a terrorist, and he has supported a broad array of criminal and constitutional claims against him. These views are popular as are the invectives from Tribe, including criticism of Republicans and even a false attack on Attorney William Barr for his Catholic faith.
I have maintained that a president can grant himself a pardon. I held that position long before Trump took office. I also believe a president can be indicted in office. The reason is the same as the Constitution prohibits neither. But this is not the first time that Tribe and I have disagreed. Two decades ago, we testified at the impeachment of President Clinton. At that time, Tribe was far more restrictive with his legal analysis, declaring that lying under oath would not be an impeachable offense.
A federal court and Democrats agreed that Clinton knowingly committed perjury, but Tribe insisted that a president could commit perjury in certain instances and not be impeached. So one can commit a felony for which thousands have been incarcerated, including those prosecuted by his own administration, but he should not be removed.
I maintained that perjury is a high crime and misdemeanor regardless of its subject. I testified in the impeachment of Trump that the issue was far more difficult because of the absence of a clear criminal act like perjury. While I testified that Trump could be impeached on the two articles that were adopted by the House, I felt Democrats had not created a record for such a maneuver and had moved prematurely.
People can disagree on such issues, but the language here is clear. 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.” There is no language that specifies who may or may not be pardoned. The president is simply given the power to pardon any person for any federal crime, and many courts would likely dismiss challenges to such pardons as nonjusticiable.
Tribe insists the clarity comes in a provision referring to how a president “shall take care that the laws be faithfully executed.” He notes, “It does not say except the criminal laws. It does not say except when he chooses to violate the criminal laws.” But these provisions have an inherent conflict. All pardons for anyone would mean that a president is negating the effect of criminal law. That is the entire point of a pardon.
It includes pardons before any actual charge like the one given to Richard Nixon. While Tribe is saying that a pardon for the president himself would be notably bad, any pardon for anyone would run afoul of the key duty to “take care that the laws be faithfully executed.” Moreover, the fact is that the pardon power is in the laws of the United States.
Tribe insisted that the Framers would never have assumed such authority since even the king of England did not have the power to pardon himself. It is curious since the king of England was protected by an absolute rule of immunity that he can do no wrong. There would be no need for a pardon of a king in a system where he could not be charged. Kings were deposed in a lethal rather than legal sense for many centuries.
Tribe then moved from the historical to the sensational. He noted that Trump once said he could shoot someone on Fifth Avenue and get away with it. A pardon, Tribe insisted, “would make that literally true.” However, that is not the case. Murder remains a state offense which is not limited by federal pardon power. Trump can pardon himself from any and all crimes covered in the federal criminal code, but he still could be prosecuted under state law for that body left on Fifth Avenue.
The stronger argument against a president using the pardon power for himself is not the textual one by Tribe but simply that the Constitution should be read to include the principle against actions in the personal interest. Yet presidents engage in nepotism to favoritism to cronyism without a hint of difficulty. Clinton appointed his wife to head a federal commission on health care and pardoned his half brother. The Framers did not bar such actions any more than pardons.
This is why Trump can pardon himself, and also why he should not do so. Just as I denounced Clinton for abusing the pardon power, I believe such a step by Trump would be an even greater abuse of this authority. Indeed, it would be constitutional, but it would be wrong.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.