Can He Really Pardon Himself? Maybe. But It’ll Cost Someone Their Freedom – Him or The Rest of Us.

Can He Really Pardon Himself? Maybe. But It’ll Cost Someone Their Freedom – Him or The Rest of Us.

Since Trump Time is like dog years in that it is highly accelerated, I now bring you WTF Wednesday on Sunday morning. The above tweet was posted by Donald Trump on Saturday morning at around 4:30, EST. For 140 characters, exactly (which explains the lack of space between “us.FAKE,”), there is a lot to unpack with this tweet, or as former Press Secretary Sean Spicer informed the nation, this Official Statement from the White House.

First and foremost, the obvious. Not everyone agrees that a president has “complete power to pardon.” To understand why that is, we first have to understand what the president’s pardon powers are. Per Article II, Section 2 of the Constitution, the president has the power to pardon only offences against the United States. This means that he or she can only pardon federal crimes.

If, for instance, someone has committed a crime; such as defrauding a charity by skimming off the top of a number of donations for a charity related to cancer in children and funneling it into a slush fund used by their father, and is then charged at the state level; the president cannot pardon this person. Now, defrauding a charitable organization is also a federal crime, but if that person is charged in, say, the State of New York, and not by the U.S. Department of Justice, and they are convicted by the State of New York, then the president cannot pardon that person.

Second, it remains unclear if a president can legally pardon someone without a conviction. While it is true that President Ford gave a full pardon to President Nixon for “all offenses against the United States which he … ha[d] committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974,” it remains unclear if that was entirely legal.

Nixon was never formally charged with a crime after he resigned. He was never formally impeached either, though the Articles of Impeachment had moved out of committee and were scheduled for a vote by the full House of Representatives. In those charges passed by the Judiciary Committee against President Nixon there are such things as obstruction of justice, cover up of a crime, and personal involvement in one, the other, or both while acting in office. The full list follows:

Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.

The means used to implement this course of conduct or plan included one or more of the following:

  1. making false or misleading statements to lawfully authorized investigative officers and employees of the United States;

  2. withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;

  3. approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;

  4. interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;

  5. approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities;

  6. endeavouring to misuse the Central Intelligence Agency, an agency of the United States;

  7. disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;

  8. making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or

  9. endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

If all that sounds familiar, well, that’s because it is. Nearly every one of these charges could fairly be levied against Trump by the layman right now. He has told us, either in interviews or on twitter, that he has engaged in some or all of these. Correspondence between himself or a subordinate and a foreign power has been intercepted by the intelligence community during routine surveillance of communications with foreign powers.

Remember when Trump declared that he had been bugged by Obama? Well, he hadn’t. The Russians that he, or someone in his campaign and/or family were speaking with were likely being surveilled and their communication may have been scooped up along with that surveillance. For all of his public declarations for love of leakers like Assange and Snowden, he apparently never took the time to read about what was being scooped up and how.

If Trump, his kids, or his campaign staff – including Jeff Sessions – were “tapped,” it is because they were speaking with people that the United States government had deemed to be a threat and a FISA warrant was issued allowing for the surveillance of communications between those individuals and United States citizens.

It’s possible that this was explained to him as he’s never mentioned this again. It’s probable that this happened as evidence now shows that at least Sessions was caught in this surveillance. Sessions, we can assume, would be one of the people that Trump would like to pardon.

And that gets us back into what are the president’s pardon powers, exactly? As noted, it is unclear that it is actually legal to pardon someone without an indictment and/or a conviction. While it can be explained that Ford wanted to just end the whole Nixon drama and move on, and that it might have been in the country’s immediate short-term interests to do so, the legality of such a move was never challenged.

This gets into the powers of the Court a bit. Contrary to things that Trump said on the campaign trail, the Court cannot rule on something that is not before the Court. An illegal action may occur, but if this action is never brought before the Court, the Court cannot rule that it was, in fact illegal; just as the Court cannot just unilaterally declare that something is unconstitutional without a suit before it (or in the case of the Second Amendment, the Court cannot declare that part of the Constitution is Unconstitutional).

I can almost forgive Citizen Trump for being totally ignorant of the way the Constitution works; I have trouble forgiving Candidate Trump for the same, as I think that by the time that someone is a candidate they should have a working knowledge of the Constitution that they might be sworn to uphold; but I absolutely cannot forgive Trump in the White House for more six months not knowing the basics of the government that he is now expected to lead.

So, can Trump just pardon everyone in his family, campaign, and administration for any and all actions against the United States that may or may not have occurred from June 16, 2015; when he announced his candidacy, to the present day?

Short answer, yes, but; long answer, probably not.

The short answer is yes, he can. That Ford pardoned Nixon for any crimes, real or imagined, during a period of time suggests that there is a precedent for such a pardon. That this pardon was never challenged, however, leaves the question open. Let’s assume for a moment that Trump does go down this road. And that this pardon is totally legal. According to a Supreme Court ruling in Burdick v. United States236 U.S. 79 (1915), “a pardon … carries an imputation of guilt and acceptance of a confession of it.”

In other words, Trump can pardon all the family and friends he wants, but this amounts to an acknowledgment by those parties of guilt if they accept the pardon. Further, a pardon removes Fifth Amendment rights. Since a pardoned person can no longer be tried for the charges that they may be called to testify in relation to, they can no longer claim Fifth Amendment protection for refusing to answer questions that relate to those charges while under oath.

Simply put, if Trump pardons his entire family, his campaign staff, and his administration, they are no longer able to refuse to answer questions under oath about the entire affair without facing contempt of court, or congress, and they will go to jail.

So, can Trump pardon himself? That seems to be what he is after in all this. That, again, is unclear. The Framers of the Constitution didn’t appear to envision that someone who attained the office of the Executive Branch would ever need to be in such a position. Or, if they were, that there were checks and balances in place to ensure that such a person would be removed.

Then again, they wrote their document in the days before political parties and before  fascism. They wrote their document in the aftermath of leaving a familial tyranny. They understood that any democracy, especially a republic, would require an invested public. They likely never envisioned someone like Trump because they never thought that someone like Trump would ever be taken seriously.

However, this question has come up before. Guess who? Nixon. Nixon’s own Department of Justice, which by the time that Nixon was facing impeachment was headed by Robert Bork (yes, that Robert Bork; he was heading up the department after the Saturday Night Massacre) concluded that no, a president cannot pardon himself.

Again, this is something that has never been challenged, but this is because it has never been tried. Suffice it to say, however, that no one other than Trump and perhaps a few of his lackeys that, like Trump, have no understanding of Constitutional Law, agree that a president can pardon himself. Even if it were true that a president could pardon himself, the fallout would be disastrous.

Given that the acceptance of a pardon, even one that you give yourself, is an admission of guilt, a Trump pardon for Trump would boldly claim to the world that he is indeed guilty of all that he is accused of. There may even be things that Trump would be acknowledging guilt of that he wasn’t guilty of as he would be acknowledging guilt for any and all things that did or may have happened.

If Trump thinks it is difficult to do his job now, a job that he has never given any indication that he intends to do, he will find it more difficult once he has declared to the world that he is guilty of the high crimes and misdemeanors that are required for his impeachment and that require his impeachment.

The best thing that Donald Trump can do now, if he even cares about anything other than adulation, is to shut up and sit down. If he is truly innocent of any and all charges, the investigation will bear that out. But with each passing day, and each ill-advised tweet that he fires off during his morning constitutional, he suggests not only to the country, but to the world, that he is indeed guilty.

And that’s not even getting to the fact that he used the phrase, “so far”.

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