The self-pardon trap that may catch our rogue President Trump
Joe Biden’s pick for attorney general, Merrick Garland, is a man of the law. He may consider it important to establish, against Trump’s self-pardon, that no one, including a president, is above the law.
Be careful what you wish for, Mr. President: Any attempt to pardon yourself for federal crimes may increase the likelihood that the Department of Justice will indict you.
DOJ’s Office of Legal Counsel concluded in 1974 that a “President cannot pardon himself.” But courts have had no occasion to affirm that conclusion. The only way for the Justice Department to have the issue resolved is to indict Trump notwithstanding any grant of self-clemency.
There is a menu of recent federal Trump crimes to choose from — his pressuring the Georgia Secretary of State to “find” enough votes to overturn the state’s election result would seem to violate federal law making it a crime to attempt to deprive citizens of their right to a fair and impartially conducted election. Trump’s call to an angry mob to march on the Capitol has every appearance of violating federal law defining a “seditious conspiracy” as one that uses “force to seize, take, or possess any property of the United States” or to “hinder, or delay the execution of any law of the United States.”
The absurdity of a self-pardon
The current Acting Attorney General, Jeffrey Rosen, cannot be counted on to back the long-standing DOJ position against self-pardons in his waning days in charge.
But Joe Biden’s pick for Attorney General, Merrick Garland, is a man of the law. He may consider it important to establish, against Trump’s self-pardon, that no one, including a president, is above the law. Wednesday’s events make it exponentially more difficult to avoid holding Trump to account.
The strongest argument in favor of the right to self-pardon is that the Constitution’s Article II grants the president power to issue pardons “except in cases of impeachment.” According to the argument, since the Constitution specifies this sole limit on the power, the president can do whatever else he wants with it, including pardoning himself.
But consider the absurdity — a president could pardon himself for bribery or treason or fomenting insurrection, the very crimes for which he was impeached the week before. And then re-commit the same acts and pardon himself again.
Even ardent textualists, intent on reading the Constitution strictly according to its words, should recognize what the DOJ concluded in 1974 and others have recently agreed: The framers of a Constitution designed to enshrine the rule of law cannot have contemplated allowing anyone to “be judge in his or her own case.” In warning against such a rule, John Locke, the 18th Century political philosopher in whose works the founders were steeped, explained that, “self-love will make men partial to themselves and their friends: and hence . . . nothing but confusion and disorder will follow.”
Locke’s observation could easily be mistaken for a crystal ball.
Impeach:Pence should threaten the 25th Amendment and Congress should impeach to purge Trump stain
Even Richard Nixon declined to pardon himself for his Watergate crimes. Instead, facing certain impeachment and conviction, he resigned, triggering the 25th Amendment provision that the vice president becomes president in such circumstances. As president, Gerald Ford then pardoned Nixon for federal crimes he may have committed — an act of misplaced generosity which cost him the White House in the 1976 election.
If Trump is intent on protecting himself by a pardon, better to resign and have Pence follow Ford’s precedent. But that would require Trump to abandon his primary motivation — to appear, like Oz, all-powerful.
Even Trump's cult is against him
If past is prologue, Trump will subordinate even self-interest to his lust for power. That flaw may well hoist him on his own petard.
Just as Oliver Wendell Holmes famously wrote that “hard cases make bad law,” clear cases of extreme official conduct can lead judges to speak boldly with one voice. So it was with Nixon’s attempt to withhold incriminating tapes, resulting in the 8-0 Supreme Court decision in United States v. Nixon.
And so it is that Trump’s mob incitement to storm the Capitol could easily compel a strong judicial affirmation of the limits of Executive power. Judge and AG-designate Garland understands these things, which may add to his willingness to prosecute.
Remove Trump:We're way off-track when even I want Trump impeached, removed and barred from office
The stain on lawful order that Trump has left is so dark that even in this tribal age, a full quarter of Trump voters agree that action should be taken to immediately remove him from office. Further, 41% of Trump voters now say he has “betrayed the values and interests of the Republican Party.”
When even a cult breaks rank, it reflects broad recognition that the most fundamental principles underlying the Republic and the rule of law are at stake. If a case to consider a Trump self-pardon arises, expect courts to uphold the rule of law and not the man who would be king.
Philip Allen Lacovara was formerly counsel to the Watergate Special Prosecutor and Deputy Solicitor General of the United States for Criminal and National Security Matters. He argued US v Nixon before the Supreme Court. Jeffrey Abramson is professor of Law and Government at the University of Texas at Austin. Dennis Aftergut is a former federal prosecutor and Supreme Court advocate who writes on national affairs.
