With so many of President Trump’s closest allies facing the possibility of prison time, presidential pardons is a topical issue right now. And the issue that towers over the others is whether the president may pardon himself.
The problem is there is no authority — no statute or court case — directly on point, although there is a smidgen of authority. When President Nixon was facing impeachment in 1974, he asked his Justice Department for an opinion on whether a president could pardon himself. The answer was in the negative.
In response to the question, Acting Assistant Attorney General Mary Lawton wrote, “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
Of course, President Nixon ultimately did not attempt to pardon himself but left that task to his successor, President Gerald Ford. That pardon, in September 1974, may well have cost Ford the 1976 presidential election against Jimmy Carter.
President Trump disagrees with that assessment that a president cannot pardon himself and I am inclined to agree with him, legally speaking, although I do not believe it would be morally right for a president to pardon himself of a federal crime. Indeed, it probably would be political suicide.
Article II of the U.S. Constitution does not prohibit a president from pardoning himself. In fact, it places only two restrictions on pardons: 1) a pardon can only involve a crime against the United States, (only a federal crime, not a state offense and not a civil matter), and 2) it may not be given to undermine an impeachment petition.
At this moment, neither of those applies to Trump. He has not been charged with a crime and articles of impeachment have not been brought against him.
House Speaker Nancy Pelosi has said she does not intend to attempt to impeach President Trump — that it would only tear the country apart and he “is not worth it.” In many ways that is appropriate since it would seem that congressional leaders would wait on the report of the long-going Mueller investigation to decide about proposing or ruling out impeachment
For the sake of argument, let’s imagine that the House approved articles of impeachment and then the Senate, after a trial, convicted him (an unlikely event) and thus Trump was removed from office.
Then where would the country be? With Mike Pence as president.
Pence, a former radio talk show host, rose to be the third-ranking Republican in the House, but as a six-term congressman never passed a single bill. As governor of Indiana, he was known for sticking to his conservative agenda, but for paying scant attention to details.
I have not liked many things President Trump has apparently done, such as paying hush money to a prostitute to keep quiet about their “thing,” but given the choice between him and Pence, I would just as soon stick with what we have.