Will Trump Pardon Himself? Why the Hell Not?

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

With the countdown to January 20, 2021 proceeding apace, we’ve reached one of the seamier windows familiar to veteran observers of U.S. politics.

Who will Trump pardon?

Aside from whether he might pardon himself – an issue that would break new legal ground, but not particularly novel or interesting territory – the moves Trump seems to be considering are not any more sleazy than those Bill Clinton, for example, has already taken.

Much recent press paints Trump’s pardon machinations as somehow unique and beyond the pale. Other than the self-pardon issue – exhumation of which I suggest is attractive to the same type of intellect who thinks that you should not, I repeat NOT have voted for yourself for student council president back in junior high school.

He’s almost certain to act to protect various loyalists and hangers on – Rudy Giuliani, anyone? – there is also the wild card possibility that he might do the right thing and pardon Julian Assange.

A couple of points, the U.S. Constitution’s pardon power, at least for federal offenses – is virtually absolute. Permit me to quote from a 2016 post, Pardon Power: The Obamamometer’s Options

The United States Constitution says that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

So allow me to summarize the salient points.

Absolute Power Can Neither Be Reviewed nor Overturned As a Matter of Law

The President’s pardoning power is absolute.  Pardoning decisions are not subject to judicial review, nor can any individual pardon be overturned by an act of Congress. The pardoning power’s also unlimited as to offenses against the United States, so in theory, at least as a matter of law, a President could pardon someone for committing any offense against the United States (I leave to one side the question of whether such an action would be politically possible).  A President could also, at least in theory, pardon him- or herself for anything except in cases of impeachment.

No Indictment Necessary

It’s not necessary for someone to be charged or convicted of a crime against of the United States for the President to pardon that person.  The most famous example of a President granting a pardon in a case where no indictment had been brought is President Gerald Ford’s September 1974 pardon of Richard Nixon shortly after he resigned the office of President….

Now that self pardon seems fully on the table, a recent post by Jonathan Turley, spells out some key controversies.

Before summarizing some of Turley’s post, I note that I expect Trump to roll the dice and assume he can pardon himself – knowing that the decision as to whether he’s right will probably be made by judges he saw successfully confirmed. One of Trump’s greatest successes was reshaping membership of the Federal courts, from the three Supreme Court Justices he confirmed, down through numerous federal and circuit court judges he saw seated.

Over to Turley:

While I have long maintained (before the Trump Administration) that a president can self-pardon, I have always said that this is a question with good-faith arguments on both sides….

The Washington Post appears to have dispensed with any notion of balance in running repeated and often redundant columns against self-pardons with little discussion of the opposing views. It has now added this column on an interpretations that is demonstrably at odds with the history, language, and purpose of presidential pardons. It does not matter. It is anti-Trump and thus there is a sense of Trumpunity from the obligations of accuracy or balance, a long-standing problem at the Post.  It reminds me of the past argument by Harvard Professor Noah Feldman (who testified with me at the impeachment hearing) that President Trump was not really impeached after he was impeachment. That argument was at least based on a specific (if unsupported) technical claim of procedural completeness. This is simply an argument based on a type of “extraordinary times demand extraordinary interpretations.” The meaning of the pardon clause does not change by sheer will or whim.

Jerri-Lynn here. Nor might Biden wish to do so. I point out that Trump relied more strongly on the involvement of family members in his administration, perhaps to a greater extent than any administration since JFK’s. Given the continued widespread hostility to Trump, his supporters, and his family, I wouldn’t be surprised to see pro forma pardons for both Jared and Ivanka – although I should mention that a well-placed observer of my acquaintance says these won’t actually be forthcoming – as the potential charges that these family members face are state law claims, and these couldn’t be eliminated by any federal pardons.

I’m not so sure. Any pardon would no doubt complicate any legal investigation into activities undertaken by Trump and his family. So I would think pardons for all would be prudent.

And once that precedent is established. Biden might in future also choose to do for his problematic son Hunter. Who knows, Trump’s pattern of closing down federal legal liability for his family may become the new norm.

Ludicrous Unpardon Argument

Now that Trump Derangement Syndrome (TDS) is on the verge of passing into the historical ether as an active malady, I find myself concentrating on just how badly it distorted the writing and arguments of many who should have known better.

With respect to pardons, a textbook example of TDS in practice, with respect to Trump’s pardon power, is the ludicrous claim Turley debunks that if Trump pardons himself, Biden should just unpardon him.

According to Turley:

Recently, however, experts have brought the same claims of clarity on this question to assure the public that the argument for self-pardons is “incoherent and incompatible” with the Constitution. Ken Gormley, president of Duquesne University, is one of those who supported impeachment and rejected any basis for self-pardons. He has now however gone one better and claimed that Joe Biden can “unpardon” Trump if he does grant himself a self-pardon.

In the ultimate understatement, Gormley writes that unpardoning someone “might sound strange, even extra-constitutional.” It certainly does. Indeed, it sounds entirely absurd. Gormley admits that “[c]ertainly, there’s nothing in the words of the Constitution or in historical precedent that speaks of undoing a self-pardon.” However, he insists that is is “because there’s nothing that authorizes a self-pardon in the first place.”

I will not repeat the basis for self-pardons in prior writings (here and here and here and here). However, even those who disagree with the basis for self-pardons have not gone as far as Gormley in claiming the right to unpardon predecessors.

Is there any precedent for a Presidential unpardon power?

Uh, no.

But that doesn’t mean someone with a rampant case of TDS cannot just create some new unpardon doctrine that purports to limit Trump in his exercise of his legitimate exercise of well-settled presidential pardoning powers.

This latest salvo against Trump is unique and beyond the pale. Other than the self-pardon issue, exhumation of which I suggest is attractive to the same type of intellect who thinks that you should not, I repeat NOT have voted for yourself for student council president back in Junior High school.

Will a self-pardon now become par for the course for future exiting Presidents? Perhaps.

Clintons and Pardons

To set a benchmark for the worst Trump could come up with as he issues the standard raft of end-of-Presidency pardons on his way to his last journey on Marine One, allow me a brief walk down memory lane to remind readers of one Bill Clinton’s highlights in sleaze: the Marc Rich pardon. It would be hard to top the standard set by the Clintons there.

Ex-wife, New York socialite and campaign fundraiser Denise Rich managed to secure a pardon for the fugitive financier from Clinton.

She denied that any money changed hands.

Sure. I believe her totally. Why should I not?

What I remember at the time was the strong, persistent rumors from well-connected contacts that more than money changed hands.

Leave it to Bill that money wasn’t quite sleazy enough – but that there also had to be a bedroom angle.

Rich also denied she had an affair with Bill in this Irish Times account, Denise Rich denies Clinton’s pardon bought:

Wealthy Democratic Party donor Denise Rich, in her first interviews since former President Bill Clinton’s pardon of her ex-husband, Marc Rich, insisted the pardon was not bought and said she supported it under pressure from their daughters.

“That’s not at all what it was about,” Ms Rich said in the 20/20 interview to be broadcast today.”I wanted to support the president, and I wanted to support my country.” Ms Rich also denied tabloid reports suggesting that she and Mr Clinton had an affair.

“I never had a sexual relationship or anything else that’s improper,” she said. “Any kind of relationship that would be improper with President Clinton.” In both interviews, Ms. Rich, 57, admitted that her contributions to the Democratic Party, including former First Lady Hillary Rodham Clinton’s campaign for a US Senate seat from New York, had bought her access to the White House.

The office of the US Attorney for Manhattan, Mary Jo White, is examining whether Marc Rich, 66, bought his pardon with political donations and gifts that Denise Rich gave Mr Clinton, the Democratic Party and Senator Hillary Clinton.

Vanity Fair traces Rich’s dealings in North Korea, Russia, Yugoslavia, Romania, Bulgaria, Jamaica, Venezuela and South Africa, when anti-apartheid sanctions were in force.

“The smoking gun is greed,” Ken Hill, the US Marshall who hunted Mr Rich around the world for 14 years, told Vanity Fair. This is what Marc thrived on – the greed of those who had commodities and were in positions of influence and power.

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  1. Synoia

    Is the pardon specific, or is it general?

    I Donald Trump, POTUS, pardon myself for anything that I have ever done since birth?

    If it was a pardon for a specific act, One doubts all his acts could be listed, and his list of pardons could become both somewhat voluminous and trigger a search for an omission.

    1. pricklyone

      Me too. If the Constitution stipulates “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” it follows that one would have to specify what offense you are pardoning.
      From the language, you are pardoning offenses of persons, not persons…

      1. Halcyon

        If you take a look at the Ford-Nixon pardon, which is the real precedent for this sort of blanket pre-indictment Pardon, the phrasing is as follows:

        “Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.”


        So this is really “all offenses against the United States which Nixon may have committed while President.” The point here is not only was there no indictment but it was also not necessary to specify the offense in any level of detail. Indeed, this pardon likely applies beyond the watergate intentions.

        For example, if, totally unrelated to Watergate, he had done some tax fraud (and could’ve been done for Conspiracy to Defraud the United States), I imagine that would be covered by the pardon.

        I see nothing that would prevent Trump from issuing a statement that reads a lot like this one, but replaces Nixon’s name with his own, and replaces the dates to encompass his entire life, and it’s in essence entirely the same, a blanket federal pardon for any offenses yet to be decided.

        All of the decent legal scholarship I have had explained to me on this issue concurs with this article in that there are basically not any practical legal limits on the pardon power when it comes to federal crimes… and in the original text of the Constitution, it is hard to argue for them… only political limits.

        1. Old Jake

          Is it but a short step to a principle that a POTUS, once elected, has implicit immunity from all Federal offenses they might have committed from birth? After all, it could easily become customary for an outgoing President to issue a self-pardon in exactly those terms.

          1. Halcyon

            If it became the “norm” that former Presidents and administrations were ruthlessly investigated by the justice departments of the next administration for wrongdoing while in office, I imagine the blanket self-pardon would very quickly become the “norm” too. As a Brit (yes I know my political system is also awful) this seems like an oversight by the founders (who should in any case hardly be deferred to as oracles in all things) and worthy of Amending away. I would prefer leaders not to get off scot-free. it might motivate them to commit fewer crimes.

            Am reminded of the end of the Roman Republic, though, where being in high office as long as possible was crucial – you had immunity from prosecution – because otherwise you faced being dragged through the law courts for the various corruptions you may have been involved with while in that office. Cicero originally made his name prosecuting such a case.

            1. Alternate Delegate

              And Julius Caesar prosecuted Gaius Rabirius for murder committed under cover of an “ultimate decree of the Senate” – precisely to deprive that decree of its “pardoning power”. The decree had been used repeatedly by the Senate to massacre progressive politicians and their supporters with impunity.

              Caesar obtained this conviction (and then used a procedural trick to prevent the execution of Rabirius, who was being defended by Cicero).

              No more Autopardons!

            2. ObjectiveFunction

              Yes, and consider also the ostracism of Pericles, which in the waning of the Athenian golden age had become the standard fate of its outgoing leaders. Until it wasn’t.

              Inevitably, any state which executes, imprisons, proscribes, ostracizes, exiles or confiscates the property of its former high officials or their families, no matter what justice there may be in the accusations, is inviting Caesarism: tempting said officials to seize dictatorial powers while they still have power to do so, on the very primal “if I have nothing to lose, I’ll get you first” principle.

              But driving out the scapegoat to symbolically purge the collective sins of the community, clear the slate (Prof Hudson, to the white courtesy phone) and also secure some freedom of action for the new rulers, is an even more ancient human impulse, and talking up vengeance definitely scores points with the mob.

              The Founders, steeped in the classics, as well as quite recent English history, knew all these dynamics quite well. That’s, for example, why bills of attainder are explicitly banned in Article One of the Constitution (I’m no legal scholar, so anyone feel free to clarify but the Founders were extremely aware that using the institutions of the state to pursue vendettas against individuals would not end well).

              I am saddened, but not surprised, to see so called ‘legal scholars’ ignoring all this to join Mob Blue, even though they will be among the first to walk to the razor.

              I can’t imagine the Supreme Court standing by while this kind of precedent is set, or to permit self-promoting Attorneys General trying to pursue the same vendettas at state level. If it should do so, the Republic as we currently understand it is not long for this world. We shall soon see on what meat doth our Caesar feed.

              1. vlade

                “Inevitably, any state which executes, imprisons, proscribes, ostracizes, exiles or confiscates the property of its former high officials or their families, no matter what justice there may be in the accusations, is inviting Caesarism: tempting said officials to seize dictatorial powers while they still have power to do so, on the very primal “if I have nothing to lose, I’ll get you first” principle.”

                So, what you’re saying is by prosecuting you’re inviting Ceasarisms. What do you do then by _not_ prosecuting, when the high officials _know_ they will not be prosecuted because “by doing so you’d invite Ceasarism”? I guess you get the current US *)

                *) I’d like to point you to Europe (France, if you want a really a lot of examples), or say Oz (“we jail them preventively when they become PM, no-one who’s not criminal would not want to run for a PM”). I havent’ noticed Ceasarism in either place.

                1. Halcyon

                  Weirdly, the ability to issue a blanket self-pardon gives the Caesar impulse a let-off, since it’s no longer necessary to do a coup in order to avoid being prosecuted. You can self-pardon and ride off into the sunset.

                  I would prefer a system that can both prosecute officials and avoid Caesar-isms

      2. drumlin woodchuckles

        Well, he could pardon himself for ” every possible Federal Offense ” that someone thinks he may have ever committed, exCEPT for any Federal Offense for which he was impeached.

        And if he decides he can’t pardon himself, he can always resign the day before Inauguration and get Pence sworn in, and then Pence can give him a Nixon-sized pardon.

        Or Biden could give him a pardon because “unity” and “healing the nation”. It WOULD be the “Barak Obowelmovement” thing to do.

        1. Halcyon

          The “except in cases of impeachment” clause is interesting. Does it mean “the President can’t pardon himself for offences that he is currently being impeached for?” i.e. he cannot dismiss an impeachment with the pardon power.

          Does it mean “the President can’t pardon himself if the House ever voted to impeach on a motion”?

          Not that the Ukraine phone call would likely result in a criminal prosecution anyway.

          The whole power (alongside what impeachment is for) needs constitutional clarification.

          1. drumlin woodchuckles

            Well . . . if anyone can give the Constitution a reality-based battlefield-conditions stress-test; President Trump can do it.

          2. Adam1

            I find it interesting as well. I would speculate this was meant to prevent a president from self pardoning. Presumably, if a sitting president committed crimes against the US they would be impeachable offenses and congress would be doing its job and impeaching the president. However, the lack of that level of clarity is missing so it likely leaves/grants more political power and wiggle room than probably was originally intended.

    2. larry

      Notice that Nixon’s pardon was only for federal crimes, which is all that Trump can do, too. The Southern District of New York is going after him for non-federal crimes. Trump has committed federal crimes as well as non-federal crimes. If he wants to pardon himself for those federal crimes, let him go for it.

  2. TMoney

    The Constitution contains a “domestic emoluments clause” (Article II, Section 1, Paragraph 7), which prohibits the president from receiving any “Emolument” from the federal government or the states beyond “a Compensation” for his “Services” as chief executive.

    IANAL, however, the self pardon is a violation of the “domestic emoluments clause”. A self-pardon is a clear benefit from the Chief executive to the Chief executive.

    1. Skip Intro

      And is there a statute he could be charged under? In fact, the ‘crimes’ of Trump seem to me matters of decorum, or hallucinations of pundits striving for an MSNBC interview. What does anyone think Trump will concretely be charged with that he would need a pardon? Are these things deemed unworthy of impeachment, or crimes committed since then?

    2. Jerri-Lynn Scofield Post author

      No, I don’t see it that way. And as I noted when I first addressed this issue, the remedies for alleged emoluments violations are limited – as the course of the Trump emoluments litigation has subsequently made clear.

      In other words, just because something may be unconstitutional doesn’t mean anyone can do anything about it.

  3. Jeremy Grimm

    What has Trump done for which he needs to pardon himself? Or maybe I should ask — what indictments threaten Trump and for what offense(s)?

    1. Halcyon

      Without endorsing the validity of any of the legal arguments here, Bloomberg has a summary of potential Trump-related legal issues.


      I have to say, following the Trump-related scandals as closely as I have done – without much knowledge of U.S. law beforehand – it seems to me like, if the Feds want to go after you, they can make a case based on very little. “Process crimes”, to start with.

      The “conspiracy” statute seems to be incredibly broad. You simply need to agree with one other person to commit a crime and then commit one overt act in furtherance of that crime. Trump ordered Cohen to violate campaign finance law re: Stormy Daniels, which he’s plead to, so you could presumably nab him on conspiracy there.

      I have absolutely no doubt that if you dig around enough in any billionaire’s affairs, you could probably pin a thing or two on them, let alone someone as unscrupulous, sloppy, and dodgy as the Don.

      1. molon labe

        https://www.oxfordeagle.com/2018/05/09/show-me-the-man-and-ill-show-you-the-crime/ “Lavrentiy Beria, the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, bragged that he could prove criminal conduct on anyone, even the innocent.

        “Show me the man and I’ll show you the crime” was Beria’s infamous boast. He served as deputy premier from 1941 until Stalin’s death in 1953, supervising the expansion of the gulags and other secret detention facilities for political prisoners. He became part of a post-Stalin, short-lived ruling troika until he was executed for treason after Nikita Khrushchev’s coup d’etat in 1953.”

        https://www.charleskochinstitute.org/issue-areas/criminal-justice-policing-reform/the-criminalization-of-everything/ “A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. When a Christian outreach group offered food to homeless people in a Fort Lauderdale park, its members were arrested because a local regulation disallowed such food sharing. Thinking of advertising your business hours in Eastern Standard Time? You could be arrested and charged in at least one place in the United States.

        Though they may seem ridiculous, these so-called crimes offer a window into a serious problem called overcriminalization, a side effect of making criminal law a one-size-fits-all solution for society’s problems. Our system of laws has become so big and confusing, it can turn ordinary citizens into accidental criminals.”

        1. Halcyon

          On the process crimes, I quite agree.

          Far more infuriating than any nefarious Russia-gate scandal is the fact that when they nailed Paul Manafort for elaborate but barely-concealed tax fraud (if I recall correctly he ended up netting a co-conspirator by forwarding an email to him to convert to pdf) it was clear that the only way wealthy individuals are actually being prosecuted for tax fraud is if there’s a political motivation to investigate it in the first place. Ditto campaign finance law.

          The reason so many of them felt like it was a witch hunt can only be because, I imagine, this rampant criminality is so taken for granted that they actually think it’s unfair for them to be properly investigated and prosecuted. It’s not the done thing.

          Liberals were crowing that the Manafort asset seizures “paid for Mueller’s investigation.” If that’s so, I suggest a treasure-hunting expedition could satisfy even those unenlightened about Modern Monetary Theory as that rarest of things: revenue-neutral government action that actually improves the damn world.

        2. vlade

          I don’t know enough in detail about the Soviet law, but I know that in a number of the Soviet-bloc countries the law was, on purpose, created so that you pretty much _had_ to break some laws no matter what you were doing.

          Which was a perfect tool for the state, as no-one was innocent and everyone was, if not jaileable, then at least significantly ostracisable.

          A common tool was denying someone a job. Except not having a job was a crime (who cares that it was the state that denied you the job in the first place?).

      2. Jerri-Lynn Scofield Post author

        Which is why I think there will be some form of pardon. If only to cut-off or complicate any further federal investigations. The Trump DoJ laid off of Hillary. Don’t think Trump will rely on Biden to do the same.

    2. Jeremy Grimm

      Thanks! I have ignored the many reports of Trump crimes as noise. I figured anyone who did real estate deals in NYC or Atlantic City probably had to keep at least a few skeletons in their closet. None were dragged out before the 2016 election or in 2020 so I wasn’t sure what all the Trump pardon talk was about.

  4. a different chris

    >there is also the wild card possibility that he might do the right thing and pardon Julian Assange.

    Why do people keep saying this and stuff like it? I’ve never even heard of him mentioning the name Assange.

    There are two types of TDS, the first is that Trump is responsible for everything wrong in the world, but the second is that he has any redeeming qualities at all.

    This type of stuff is the second. You’d have to find somebody still in Trump’s orbit which is like fingers on one hand at this point, who had even heard of Assange somehow, which among this poorly-read, self gazing group is pretty unlikely.

    That maybe leaves Ivanka. I’m not seeing it.

    1. Ander

      It’s half wishful thinking, the other half assuming Trump will pull an Assange pardon out of his ass to disorient his political opposition. Considering that Trump exclusively plays to his own base, and most of his base would be happy seeing Assange publicly executed, I don’t see it.

      1. drumlin woodchuckles

        If someone could convince him that pardoning Assange would be a mortal insult to Hillary Clinton and her millions of Pink Kitty Kap Klintonite fans, then he might pardon Assange.

    2. John Zelnicker

      @a different chris
      December 22, 2020 at 3:29 pm

      One possible motivation for Trump might be to poke a stick in the eye of the deep state, if he is aware of Assange’s predicament and its causes. The intelligence community is quite clear that they want him dead because he exposed them. Just look at his treatment in Belmarsh prison.

      I actually think Trump might know what’s going on since Wikileaks was a big part of the Russiagate fiasco. I’m sure Hannity, Carlson, et. al., were all over it, although I don’t know their positions at this point. However, vanishingly few journalist have come out in support of Assange, despite the potential ramifications to press freedom from his persecution.

      1. drumlin woodchuckles

        The other journalists don’t want to join Assange in Deep State Prison, or in a Deep State grave.
        They know what time it is.

      2. Brooklin Bridge

        …vanishingly few journalist have come out in support of Assange

        It might be more accurate to reduce that to: “there are vanishingly few journalists period.” Assange represents is a visceral example of which side of the bread has butter and how far the establishment is willing to go to keep it that way.

        I suspect that regardless of motive, the idea of an Assange pardon would be somewhat of a lark for Trump. Even if he were to fancy the idea, he would be fairly easy to persuade otherwise by those around him whose blood lust for control over those speaking truth to power has a keener edge.

        It would be great to be proven wrong, if only for Assange the human, never mind the principle of journalistic integrety, but I agree with others here. It’s not likely.

        1. Brooklin Bridge

          And that is before considering the fact that Trump’s class as a billionaire, particularly a rather sleazy one, would suggest an innate aversion to the dangers a presumptuous gnat with powerfully incriminating information such as Assange, who simply won’t give up, represents.

    3. Yves Smith

      If he’s going to do a pardon to poke the intel state in the eye, Snowden would be way more likely. Much more famous in the US and viewed with far more loathing by the Langley types.

  5. Edward

    So Trump was actually literally correct when he said he could go out on the street and personally murder someone and get away with it. Of course presidents have impersonally murdered people long before Trump.

    Something I have wondered about is the legality of pulling out of treaties.

      1. Edward

        Maybe he could make a deal with a governor, where the governor will pardon him for any state crimes, in return for a pardon from Mr. Trump for any federal crimes.

  6. JE

    Does anyone proofread any more? I respect not have voted? Junior hiior high school? Wake down memory lane!?! Just three of several “save the wine for after the writing” garbles in this. Maybe I’m old fashioned, but critical articles require impeccable platforms from which to sling mud in my opinion. Gives the pig room to enjoy it, as the bard said and it isn’t that hard to clean up the verbiage. Jerri-Lynn, I volunteer to proofread if you need assistance.

  7. converger

    Lest we forget: Mark Rich’s attorney was… …say it with me now… …Scooter Libby. May he burn in hell.

  8. Heruntergekommen Sein

    “Whether Trump can grant himself a pardon?” and “Whether Trump can pardon himself?” are two different questions. Since the historical and contemporary plain-meaning of “grant” is “to confer, or bestow” something to another party, the President cannot “grant” himself a pardon. No transfer of authority has taken place. Trump will no doubt “pardon” himself, in that “pardon” is a verb. Further, while a pardon can be granted prior to a conviction, a pardon cannot be granted for on-going nor future behavior.

    Thought experiment. Trump the civilian drafts a pardon document naming himself grantee and executes it as POTUS, grantor. Such an agreement is entered in “bad faith”; neither civilian Trump nor POTUS Trump has any intention to comply with the principles of the agreement: that the debt to society has been paid, in the vein of John Rawls’s “Theory of Justice”. The pardon / agreement is null. A party who negotiates and pretends to pursue a genuine settlement is negotiating in bad faith. Trump would be pretending to weigh the debits and credits of his own conduct. Such a contract has no lawful authority. John Rawls’s “Theory of Justice” is a fleshing out of David Hume’s rationalism, which is the only, singular, bedrock philosophy upon which all of the draftees of the Constitution agreed, more so than either the Old and New Testaments. The argument against Trump granting himself a pardon, and the illegitimacy of a monarchy, is one in the same.

  9. Glen

    I’m OK with Trump pardoning himself, but I think he should also pardon Reagan, Bush 1, Clinton, Bush 2, and Obama.

    They all committed crimes, most of the worst than Trump, might as well take care of all of it.

    1. Thomas P

      That’s the dirty secret, isn’t it. The only reason to talk about Trump pardoning himself is because he is so disliked by much of the establishment. A normal president wouldn’t have to worry about prosecution for his crimes.

      1. Rodger Malcolm Mitchell

        “The establishment” consists of the 80 million+ Americans who voted against incumbent Trump. Is that who you meant?

    2. fajensen

      Not a bad strategy at all!

      Donald Trump could very generously pardon Obama for a long list of barely specific “crimes”, then have Obama go “eh, what?” and the internet and media “sure you did!, we just need to dig some more!”.

      It would be a another way of thrashing Obama’s legacy.

  10. Jim

    “ Aside from whether he might pardon himself – an issue that would break new legal ground, but not particularly novel or interesting territory – the moves Trump seems to be considering are not any more sleazy than those Bill Clinton, for example, has already taken.”

    Trumps pardons of us troops and mercenaries who committed war crimes are possibly the worst things he’s done as president that are absolutely beyond the pale.

    1. Yves Smith

      Huh? Did you miss that Kissinger was a Secretary of State? And he’s still celebrated? The US military establishment is full of war criminals. Hillary gloated about “We came, we saw, he died.” Gina Haspel is a torturer. Obama bragged about how good he was at killing people. Virtually no one in the US bats an eye at how we have droned people at weddings into bloody mist.

  11. kevin smith

    Anyone who gets a pardon can’t use the 5th amendment protection against self-incrimination, and can be made to testify against trump et al …
    I suppose the same thing could happen to trump: he could be made to testify against all sorts of people, including his kids, in federal cases. [Not that trump cares about anyone else, including his kids …].

    1. emorej

      >can’t use the 5th amendment protection against self-incrimination

      … presumably this would not apply to state crimes, so Trump’s 5th amendment rights would merely be narrowed to exclude, e.g., testimony that would “tend to incriminate” himself for defrauding the IRS, breaking federal securities laws, or treasonous dealings with foreigners who (unlike Putin-Russia) are in a declared war against the USA.

      1. Yves Smith

        No, you have this wrong. There are state securities law, liability for state taxes, simple frauds that could rise to a criminal level (if you can prove intent) and be prosecuted at a state level. The treason claims all come out of RussiaRussia and Mueller showed that there’s no there there, so I doubt anyone is going to try beating that dead horse.

    2. Yves Smith

      No, that is false. Trump’s pardons extend only to Federal law matters. Anyone pardoned could still refuse to testify, citing the 5th Amendment, arguing that self-incriminating statements would expose him to state law prosecutions.

  12. Rodger Malcolm Mitchell

    The author offers an important justification for self-pardons (which put the President in the position of above-the-law royalty) is that “Bill Clinton” . . . that’s it: “Bill Clinton.” One mention of Bill Clinton is enough, in Trumpian minds, to justify all the immoralities of Donald Trump.

    Now, as Trump engages in what surely will be the greatest #PardonAPerp operation in history, I’m sure you will hear the all-purpose excuse, “Bill Clinton,” repeatedly.

    In the Trumpian excuse-machine, if anyone on earth ever did anything wrong, that is reason enough for Trump to do wrong. Case closed.

    1. vlade

      Yes, this is sort of “but look, they shoot blacks!” argument. Two wrongs do not one right make.

      There was a reason for the institute of pardon, and in general, still is, as the judical system should be just, and as I say, justice is nor fair nor merciful (because justice cannot look at full context, which is required for full fairness or mercy), which is when an institute of pardon should come in.

      That the institute of pardon became a parody of itself is a problem of the US political system, and we’d loathe Clinton as much as Trump, not use one to excuse the other.

      And yes, I do consider casting a vote for yourself dishonorable. If you really need that one vote, then to me it’s a proof you’d not be in the role.

      TBH, this whole thing shows to me how far the US (although not just the US) system went, when “it’s lawful” is an argument for doing whatever. And then we wonder why the rich steal and plunder – of course they will, even in the unlawful way.

      Because when the decision to steal or not to steal becomes a decision of law, nor morals, the move to kill or not to kill, to loot or not to loot is just a small step away, into not even of “will I be caught” dimension, but into “I can get away with it, because everyone does it”. And I have seen where that goes up close and personal, and it’s not pretty.

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