Trump Claims He Has Authority to Pardon Himself

The Trump and Giuliani show continues. Donald Trump today said he absolutely has the right to pardon himself, but he has no reason to do so because he has done nothing wrong.

Sen. Ed Markey (D-Mass.)responded on Twitter, disagreeing and citing an Office of Legal Counsel memo written four days before Nixon resigned. He quotes from the memo:

“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,”

His tweet continues:

I know you have attention span problems, but it’s the first sentence: [Memo link]

The memo further explains:[More...]

Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. 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.

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    If the oompah loompah (5.00 / 3) (#22)
    by Chuck0 on Wed Jun 06, 2018 at 01:09:29 PM EST
    does indeed pardon himself and it is allowed to stand and then the American people are not the next day on the White House lawn, armed and dangerous, then the country has fallen. Tyranny has risen and the United States deserves anything and everything that comes to pass after that moment.

    I see the eyes rolling already. More hyperbole. No more kumbayah at that point. No more ballot boxes or hope for the next election. Tyranny does not fall with votes and ballot boxes. Tyrants must be removed. We are slowly moving into very dangerous waters. Clapper and Brennan see it. See this week's Time magazine. Jeffrey Sachs sees it.

    If he is allowed to pardon himself, there is no rule of law. The Constitution is no more than a square of Charmin. If the cowards in Congress and/or the right wing dupes on the Supreme Court won't do anything, the public must. If not, the republic is gone. This will not be a country worth saving.

    I just don't think that (none / 0) (#23)
    by Zorba on Wed Jun 06, 2018 at 02:49:23 PM EST
    Americans will be willing to do this.  Not any more, unfortunately.



    Sadly. (none / 0) (#24)
    by Chuck0 on Wed Jun 06, 2018 at 04:01:32 PM EST
    I believe that is correct.

    I've also (none / 0) (#1)
    by Ga6thDem on Mon Jun 04, 2018 at 01:16:30 PM EST
    seen it said that accepting a pardon is an admission of guilt. Therefore pardoning himself would be basically admitting that he is guilty.

    You may have heard that (5.00 / 1) (#3)
    by Peter G on Mon Jun 04, 2018 at 04:28:14 PM EST
    but it is not true. Accepting a Presidential pardon for a federal conviction is not an admission of guilt. To the contrary, clearing the record of an innocent person who is found after their appeals have expired to have been wrongly convicted, or who was denied a fair appeal, is one of the core, traditional grounds for pardon. Not that it applies here, but just sayin'; what you have heard on that score, GA6, is not accurate.

    She heard it from Trump himself (none / 0) (#6)
    by CaptHowdy on Mon Jun 04, 2018 at 04:44:41 PM EST

    I assume.  He said it yesterday.

    Not that it means anything or that he can't say the exact opposite in the next sentence.


    I just looked at a list of pardons (none / 0) (#16)
    by sarcastic unnamed one on Tue Jun 05, 2018 at 03:05:23 PM EST
    of the last half-dozen presidents.

    I don't think I saw a single person who was innocent and wrongly convicted or denied a fair appeal. Heck, even George Washington pardoned factually guilty rebellion participants, not that I would argue with the pardons.


    Professor P.S. Ruckman, a leading authority (5.00 / 1) (#20)
    by Peter G on Tue Jun 05, 2018 at 11:06:59 PM EST
    on the Pardon Power, wrote on his blog in 2017 that the last Presidential pardon granted on the ground of innocence was apparently by LBJ in 1965, of a military prisoner.

    Thanks. Fascinating website. (5.00 / 1) (#21)
    by sarcastic unnamed one on Wed Jun 06, 2018 at 11:34:38 AM EST
    That would be Burdick v. U.S. (1915). (5.00 / 1) (#5)
    by Donald from Hawaii on Mon Jun 04, 2018 at 04:44:35 PM EST
    In December 1913, the U.S. Customs House in New York City became enveloped in a fraud and bribery scandal, thanks to an article in the New York Tribune which noted that Customs officials were then pursuing a political insider at Tammany Hall who had avoided paying duties on jewelry he had smuggled into the United States from Europe.

    It was readily apparent that the Tribune could have snagged this scoop only from someone with full knowledge of the inquiry at the U.S. Customs Service, which is under the administrative control of the U.S. Treasury Dept.

    Rather than investigate the fraud allegation, the U.S. Attorney for the Southern District of New York instead charged that the paper had bribed someone at the U.S. Treasury Dept. to obtain its exclusive, and further convened a grand jury to investigate the matter and determine the source of the paper's information.

    When the New York Tribune's city editor, George Burdick, and the paper's shipping news editor, William Curtin, were subpoenaed to testify, Burdick invoked his 5th Amendment right against self-incrimination in refusing to reveal the source of his paper's information.

    President Woodrow Wilson then sought to compel Burdick's testimony by issuing him an unconditional pardon, reasoning that by eliminating Burdick's criminal liability, any necessity for 5th Amendment protections on his part would be precluded:

    "Now, therefore, be it known, that I, Woodrow Wilson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said George Burdick a full and unconditional pardon for all offenses against the United States which he, the said George Burdick, has committed or may have committed, or taken part in, in connection with the securing, writing about, or assisting in the publication of the information so incorporated in the aforementioned article, and in connection with any other article, matter, or thing concerning which he may be interrogated in the said grand jury proceeding, thereby absolving him from the consequences of every such criminal act." (Emphasis is mine.)

    George Burdick refused to accept Wilson's pardon, and once again declined to reveal his paper's source(s) to the grand jury. The presiding judge then fined Burdick $500, which was a not-insubstantial penalty in 1914, and ordered him jailed for contempt of court until he complied with the court's directive. The incarcerated editor appealed the judge's ruling, which eventually worked its way to SCOTUS in Washington, where the case was argued in August 1914.

    Writing for the majority in January 1915, Supreme Court Justice Joseph McKenna determined that Burdick did not have to testify before the federal grand jury in New York, because he had every right to reject Wilson's pardon.

    "It is to be borne in mind that the power of the President under the Constitution to grant pardons and the right of a witness must be kept in accommodation. Both have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both,-to leave to each its proper place. In this as in other conflicts between personal rights and the powers of government, technical-even nice-distinctions are proper to be regarded. Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick's right to refuse it, as we have seen; and it, therefore, not becoming effective, his right under the Constitution to decline to testify remained to be asserted; and the reasons for his action were personal. ... If it be objected that the sensitiveness of Burdick was extreme because his refusal to answer was itself an implication of crime, we answer, not necessarily in fact, not at all in theory of law. It supposed only a possibility of a charge of crime, and interposed protection against the charge, and, reaching beyond it, against furnishing what might be urged or used as evidence to support it."

    "This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it." (Emphasis is mine.)

    McKenna further ruled on behalf of the majority that the government had no right to compel a witness to accept a pardon for the expressed purpose of then requiring him to testify in a criminal inquiry. He vacated the finding of contempt against George Burdick, and ordered his immediate release from federal custody.



    There are a lot of things that a majority (5.00 / 1) (#7)
    by Peter G on Mon Jun 04, 2018 at 05:02:11 PM EST
    of the Supreme Court subscribed to between 1854, say, and 1937, say, that are just wrong. That's one of them. Not to mention a lot of things they have said since.

    It's always been my opinion ... (5.00 / 2) (#12)
    by Donald from Hawaii on Mon Jun 04, 2018 at 06:19:19 PM EST
    ... that McKenna's particular point about a pardon carrying an imputation of guilt was more of a moral observation from a public perspective, rather than concise legal argument from the bench.

    That is, McKenna was likely noting that public opinion would infer from circumstances that someone would only accept a pardon if they were truly guilty. Further, McKenna's opinion on the matter seems to be the premise under which former President Gerald Ford labored for many years whenever he was defending his controversial pardon of Richard Nixon.

    But I can't think of any circumstance today where a judge would use a pardon as part of a legal basis in a sentencing proceeding, etc. McKenna also ruled that unless a defendant introduces a pardon as evidence in a particular legal proceeding, it cannot be considered by the court.

    Also, while the president's power to pardon is broad, it's not unlimited. For example, in light of the plaintiff's argument in Burdick, I have to believe that no court would allow a president to wield that power in order to suborn perjury.

    As always, Peter, I appreciate your legal expertise and perspective. Aloha.


    I can't say I know much about Justice McKenna (none / 0) (#15)
    by Peter G on Tue Jun 05, 2018 at 02:41:33 PM EST
    but Wikipedia seems to suggest that he was a politician, not a legal scholar, and a workhorse on the Court churning out opinions. He did attend a few months of classes at Columbia Law School after being appointed to the Supreme Court in 1898, having not attended any law school before then (despite having been Attorney General under McKinley). Seems like an interesting guy.

    The Supreme Court appears to have (none / 0) (#19)
    by Peter G on Tue Jun 05, 2018 at 10:56:34 PM EST
    severely limited the authority of the Burdick precedent in 1927, holding that a commutation of sentence is effective whether or not "accepted" and that Burdick was inconsistent with the history of pardons.

    Trump has claimed a lot of things (none / 0) (#2)
    by jmacWA on Mon Jun 04, 2018 at 02:04:45 PM EST
    A good portion of which can be proven to be demonstrably untrue.  I hope this is just one more of those.

    Choking on my words as I say it (none / 0) (#4)
    by Peter G on Mon Jun 04, 2018 at 04:30:53 PM EST
    I agree with Giuliani on this. I believe that the President of the United States has the power (not the "right," but the power) under the Constitution to pardon himself, even in advance of being charged. Doing so would likely be grounds for impeachment, however.

    Nixon's (5.00 / 1) (#10)
    by FlJoe on Mon Jun 04, 2018 at 05:21:14 PM EST
    DOJ thought otherwise
    In a legal opinion issued just four days before Nixon stepped down, the Justice Department's Office of Legal Counsel concluded that a president can't pardon himself. The opinion was written in response to concerns that he might try to do so.

    "Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself," wrote Mary Lawton, who was then acting assistant attorney general.


    The "would likely be grounds" caveat does not comfort me, there is  no backstop for failure. What if he were to shoot Nancy Pelosi,  Steny Hoyer, Adam Schiff and maybe a couple of Never tRump Repugs? What if was really rich enough to buy off congress (and give them immunity)? What if he just dissolved congress? Rig or even cancel elections?

    Even in the best case, with the House populated with mostly sane and honorable people, a self pardoning president with sufficient ruthlessness could go on a massive crime spree and do immeasurable damage before the HJC could even schedule a hearing.


    On what basis, Peter? (5.00 / 1) (#11)
    by Donald from Hawaii on Mon Jun 04, 2018 at 05:21:51 PM EST
    We're in uncharted territory here, so there's no case law to support such Giuliani's assertion that a sitting president has the power to pardon himself pre-emptively to avoid criminal indictment. It's merely that - an assertion of one's own personal opinion.

    From my perspective, granted as an historian and not as an attorney, such an implied power runs completely counter to the U.S. Supreme Court's ruling in July 1974 in U.S. v. Nixon, while affirming Chief Justice Marshall's contention in U.S. v. Burr (1807) that the president was "no ordinary individual," nevertheless ruled that:

    "[T]he President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice." (Emphasis is mine.)

    This country has long operated under the premise that no one is above the law. Presidents are not absolute monarchs, and we're not playing a game of Monopoly. We rightly ought to be treading much more carefully here than some people apparently seem to be doing thus far, in their haste to undercut the Special Counsel's investigation into a very grave and compromising breach of national security, by which they'd preemptively grant Trump the authority to give himself and his cronies a "Get Out of Jail Free" card in this serious matter.

    Further, we ought to consider Chief Justice Marshall's ruling in Marbury v. Madison (1801), in which he rightly asserted that it was the exclusive prerogative of the court to interpret federal law, and not that of any member of the executive branch or private citizen in the employ of an elected official. This point of contention needs to be tried in court, rather than conceded without contest in the realm of public opinion.

    If "America's Mayor" can express his opinions, then so do I. And I think that Crazy Uncle Rudy is blowing smoke up America's a$$. I am not willing to cede any such authority to Trump & Co. on this matter without a fight, and you shouldn't be so quick to do so, either.



    Speaking of opinions, legal scholars weigh in (none / 0) (#14)
    by vicndabx on Tue Jun 05, 2018 at 10:54:13 AM EST
    generally on Article II and obstruction:

    As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to "to terminate the inquiry, or even exercise his power to pardon," and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1] These views are incorrect.

    First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting "corruptly" to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress's judgment that obstruction of justice is prohibited binds the President..

    I would think a lot of the language around obstruction would apply here for the pardon power when discussing pardoning oneself.


    I completely agree with this reasoning (none / 0) (#17)
    by Peter G on Tue Jun 05, 2018 at 05:14:53 PM EST
    as far as the Article II "unitary executive" argument is concerned, and in particular as applied to the question of obstructing justice. The "unitary executive" argument is contrary to a proper understanding of the Chief Executive's role under the Constitution in the separation and balance of powers that is designed to protect against tyranny. See, in particular, the "take care" clause. I do not agree that the same reasoning applies to the Pardon Power, which by its nature is absolute, quasi-monarchical, and anti-democratic.

    The foregoing exercise (none / 0) (#18)
    by Peter G on Tue Jun 05, 2018 at 07:10:44 PM EST
    in structural constitutional theory is also my answer to Donald's earlier question. I am generally more persuaded by principled and logical reasoning than by judicial precedent. Of course, when I work in an arena where precedent controls, I invoke it as necessary.

    I think if he could get the right deal - (none / 0) (#8)
    by Anne on Mon Jun 04, 2018 at 05:05:25 PM EST
    as in, no charges for himself or any member of his family - he'd resign.

    He doesn't care about anyone else.


    I don't (none / 0) (#13)
    by Ga6thDem on Mon Jun 04, 2018 at 06:19:46 PM EST
    think he would resign unless it was a Nixon situation where he would be removed if he did not resign. I don't know even in that situation if he would do it because he's too attached to being a victim. Impeachment and removal would be the ultimate victim calling card.

    Understand (none / 0) (#9)
    by KeysDan on Mon Jun 04, 2018 at 05:15:09 PM EST
    your gag reflex. Reads like the president has the power and wide berth---before or after charges.  But, think there would be a Court challenge, based on its invalidity owing to corrupt intent.  I am buoyed, a bit, by this being promulgated by Giuliani....not so much a legal opinion, but a part of the chaos and uncertainty cloud cover for the Trumplicans.

     Being your own judge and jury does seem to be off kilter for a democracy...it took a civil war in England to drive home the legal constraints of the Magna Carta, applicable to a King as well as a shopkeeper.

     It would not only be grounds for impeachment, it would be the only necessary article for impeachment and conviction. Maybe, even enough Republicans would find a spine. But, the real only hope is for a blue wave in November.  Or, at least a big blue splash.