The Internet-verse has been filled today with commentary about Trump’s statement that he can pardon himself but he won’t, and how this is such a miscarriage of Presidential power and such. I call Bullshit. Most of these folks don’t understand what the Constitution actually says; they are pontificating based on what they think it says or what they want it to say. A few points of clarification, based on my admittedly limited knowledge in these areas:
- The only thing the Constitution prohibits the President from doing is pardoning from impeachment. It also restricts the pardon to be for Federal crimes.
- Whether the President can pardon himself has never actually been tested. Presidents before have followed normal behavior and haven’t run into this.*
- Whether the President cannot be indicted while in office has never actually been tested. Presidents before have followed normal behavior and haven’t run into this.*
- However, what is clear is that even if the President does pardon himself, he can still be impeached and removed from office. Impeachment and removal is a pretty bad stain on one’s reputation, even with a pardon.
- If the President does pardon himself, that is an implicit admission that something was done for which a pardon was required, increasing the likelihood of removal from office.
- If the President does pardon himself, he can no longer ‘”take the 5th”, as there is no longer any risk of self-incrimination. He must tell the truth about what happened and answer the questions. By the way, this is also true for anyone he pardons.
- If there is enough material to indict and convict the President, there is likely enough evidence to get him impeached and removed from office.
- Once removed from office, the President is no longer the chief law enforcement officer and can be indicted and convicted, unless pardoned for the specific crime.
- Once removed from office, the President can be indicted and convicted for state crimes, and can still be subject to civil suits and damages, even if pardoned for Federal crimes.
So, folks, please think things through before pontificating on subjects. Not every statement is what it appears to be.
*: There may have been opinions issued. However, as no President has actually issued a pardon for himself, and no indictment has been brought against a President while in office, the opinion has never been tested.
References: What Trump Can Teach Us About Constitutional Law. Episode 14, Prosecuting a President. Episode 13, Criminal Justice and the POTUS. Episode 5: Presidential Immunity. Episode 3: Pardon Power. Episode 10: Impeachment.