Once again, we see headlines based on unnamed sources; this time about Trump thinking about pardoning himself. I hate unnamed source reporting.
That said, this is not the first time the notion of a president pardoning himself has risen. Setting aside the irresponsible headlines, what are your thoughts about Trump pardoning himself, his family and operatives for any past crimes they may have committed or future crimes they may commit?
My prior reading on the topic suggests he has the power to do that under the constitution. Would Trump be wise to use this power?
With Trump himself now tweeting about his power to pardon, it's no longer an unnamed source or fake news item. Would Trump be wise to use this power?
I may have missed it, but I don't think Trump Tweeted anything about him pardononing himself, so that aspect of it is still a little iffy in the Fake News department. Makes for a great headline, though, same as it did for Nixon, Clinton, Bush Jr and Obama, all of whom had articles written about that very thing. For example, waterboarding has been a prosecutable crime in the US for more than 100 years, but a Justice Department under the Executive Branch can be told which crimes to ignore and which ones to pursue. The possibility that a new Obama administration could reach different conclusions led to the speculation that Bush might pardon everyone involved in the torture, including himself.
A president pardoning himself is a gray area in the law, because it's never been done and tested. It's the same as indicting a sitting president. In our history every legal argument that has been made in favor of indicting a sitting president has been made by, not all that surprisingly, someone who wants to indict a sitting president (Leon Jaworski, Kenneth Starr). That's the inherent problem with a special counsel or special prosecutor, they have the freedom, if not the mandate, to pursue political vendettas that ordinary prosecutors would have dropped. While an indictment of a sitting president doesn't violate the Constitution at all, it does violate the Constitution's structual principles regarding the practicalities of governance, i.e., an indictment and trial would place an undue burden on the president's ability to carry out his duties under the Constitution. It could be used as an end around method of a coup d'etat. It's probably best we don't open that Pandora's Box.
As for the president pardoning himself, I think it would all but guarantee an impeachment, because of the implied admission of guilt that comes along with it. There was talk at the time of Clinton, Bush and Obama all granting themselves a pardon on the way out the door when threat of impeachment was no longer an issue. I do think that if Trump or any other president granted themselves a pardon, and it was tested in court, and you know it would be, the Supreme Court would almost certainly go with a basic principle of the law in that one cannot be a judge in their own case, and a self-pardon is precisely that. Also, a presidential self-pardon, if given to obstruct justice, it still obstruction of justice, so the self-pardon could be construed as a crime in and of itself. I think if a president wants to pardon himself, he needs to leave that up to someone else, his successor.