WHY PRESIDENT TRUMP SHOULDN’T TRY TO SELF-PARDON

 

                                   ….Even Richard Nixon didn’t try to self- pardon

 

Gerald Ford lost his re-election because of pardoning Richard Nixon

 

Mr. Ken Gormley is the president of Duquesne University of the Holy Spirit, which is a private Catholic university in Pittsburgh, Pennsylvania.  He is also an expert on the Constitution, the presidency and the US President’s pardon power.

He has written that if President Trump makes the ill-advised decision to try to pardon himself before he leaves the White House in January, the incoming president Joe Biden should respond with another unprecedented step: “He should ‘un-pardon’ his predecessor”.

“Certainly, there’s nothing in the words of the Constitution or in historical precedent that speaks of undoing a self-pardon,  but that’s because there’s nothing that authorizes a self-pardon in the first place. The Constitution’s text, its original meaning and historical precedent all point strongly against the validity of a self-pardon.  In part because it’s unlikely that the legitimacy of such an audacious act would be determined in court. It’s important for the new president, with the advice of his Justice Department, to take a stand against this dangerous precedent.”

No president has ever tried to issue a self-pardon. Taking a pardon for oneself constitutes an act of “self-dealing”. That runs counter to the clear text of the US Constitution that says presidents can “grant” pardons, which implies “a grant to others”.  It also runs counter to the landmark holding of United States v. Nixon, the Watergate tapes case, in which Chief Justice Warren Burger wrote for a unanimous court that not even the president is above the law.

In 1974, President Richard M. Nixon’s own Justice Department’s Office of Legal Counsel issued an opinion stating that Nixon could not pardon himself, based upon “the fundamental rule that no one may be a judge in his own case.” Likely for that reason, Nixon never pardoned himself.  He was instead pardoned by the man he installed as his Vice President, Gerald Ford.  By giving Nixon that pardon, it was most likely why Ford lost his re-election.

There are many that think that it is very possible that in the coming last days of his presidency, President Trump will resign as president and he will have Vice President Mike Pence sworn in as president, and that Pence will pardon Trump.  (I hope that actually happens, but that Pence refuses to pardon his former boss.)

The Framers of the Constitution gave the chief executive enormous discretion in giving pardons. Presidents have used this sprawling power to pardon political allies, just as President Trump has already pardoned some of his cronies, and there is obviously more to come.  You may recall that George H.W. Bush pardoned his former defense secretary, Caspar Weinberger.  And presidents can even pardon their family members as President Bill Clinton pardoned his half-brother, Roger Clinton.

The pardon power permits the president to pardon individuals of all past federal crimes, and even crimes that have not been specified. If Trump chooses to pardon his children or any other person within his orbit, he can do it.

If Trump were to try to take that step, Biden should first refer the question to the Office of Legal Counsel (OLC).  If the OLC in 2021 agrees with the precedent of that office back in 1974, which is highly likely, this legal opinion would require a second piece of guidance supporting the position that self-pardons are inherently unconstitutional.  It would provide a basis for President Biden to then, issue an executive order nullifying Trump’s self pardon.

That is especially important today because Biden seems to not be inclined to have his Justice Department prosecute Trump in the interest of moving on.  This means there may never be any case involving the self-pardon issue. 

As Trump considers his options, he might want to keep in mind that a self-pardon would possibly not be in his own best interests. The Supreme Court’s 1915 ruling in Burdick v. United States, declared that a presidential pardon carries with it “an imputation of guilt,” and that acceptance of a pardon constitutes a “confession.”  And once you are pardoned, you can no longer use the 5^th Amendment as an answer when being questioned under oath.

When Mr.  Gormley interviewed President Gerald Ford in 1999 for a program at Duquesne University on his pardon of Nixon, Ford stressed that the Burdick case was a crucial factor in his decision to pardon Nixon.  He felt it would give the American public what it wanted most: a legal admission of wrongdoing from Nixon.  Ford told me that he had sent a young lawyer, Benton Becker, to Nixon’s compound in San Clemente, Calif., to explain the import of the Burdick case.

Nixon’s personal lawyer, Herbert “Jack” Miller, later confirmed this account and told Gromley that Nixon initially sought to refuse to accept the pardon because he did not want to admit guilt. It was only after Ford’s lawyer threatened to walk away and withdraw the pardon that Nixon capitulated and accepted it knowing its legal consequences.

Because the acceptance of a pardon amounts to a legal admission of guilt, Trump would suffer a self-inflicted wound if he pardons himself, while still considering running for president again in 2024.  One would hope that a major political party would not consider nominating a candidate who had effectively self-confessed to a federal crime.

And as we already know, Trump’s legacy is already stained.  But with a self-pardon, there is no way he would be considered as a GOP candidate for 2024.   

If Trump is foolish enough to take that risk, Joe Biden should not allow it to stand, for the benefit of the American presidency and for future American presidents.

Copyright G. Ater 2020