Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
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Presidential Pardons and a Constitutional Crisis
June 5, 2018
On The View, political commentator Ana Navarro said “Donald Trump is acting like the little kid in the movie who finds out he has a superpower. He wants to use it on everyone.” To date, Trump has pardoned five people, and promises more. On, June 4, 2018, Trump said “I have the absolute right to pardon myself.” Meanwhile, he claims he doesn’t need a pardon. TV talking heads engage in constant blather about whether a president can pardon her/himself and squawk about a “constitutional crisis”. There isn't one.
Our Constitution says The President shall … have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. That’s all. It doesn’t say whether he can pardon himself, probably because this scenario didn’t occur to our founders. But I doubt they would have approved. Lawyers, scholars, and pundits vary in their opinions, but those with the more legitimate credentials tend to believe that he can’t.
Because so many people request pardons, the White House system for vetting pardon applications is managed by the Office of the Pardon Attorney at the US Department of Justice. It was created by Congress as the Office of the Clerk of Pardons in 1865. Federal regulations state that the evaluation is for advisory purposes only and is not required.
(US Code of Federal Regulations. Title 28. Chapter 1. Section 1.11)
Historians speculate whether Richard Nixon appointed Gerald Ford as vice president in exchange for a pardon for his role in the Watergate affair. I can’t find any record that Nixon formally applied for a pardon and President Gerald Ford did not wait for a Pardons Office evaluation of the situation. He pardoned Nixon, but a cloud remained over both men for the rest of their lives.
The Office of the Pardon Attorney’s website contains a list of pardon statistics, by president.
The talking heads also like to howl and wail that we’re in the midst of a CONSTITUTIONAL CRISIS!!!
OMG!!! RUN!!! HIDE!!!
Every. Single. Week.
No. We are not.
Those whining the loudest have never read the constitution. A constitutional crisis occurs when there's a situation that the constitution can't handle. We have never had one. And it's unlikely that we ever will.
Trump lawyer Rudy Giuliani claims that Trump could shoot James Comey and never be prosecuted and that he certainly can pardon himself for whatever crimes he may choose. Giuliani has good reputations in two areas: as a US Attorney who prosecuted New York organized crime figures and as the New York City mayor on 9/11. He is not a constitutional scholar.
The question of whether a president can pardon her/himself has never been tested. But there is a procedure to do so. The Constitution says The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (Article III. Section 1.) The purpose of a court is to settle disputes. That is our procedure to solve the problem.
If Donald Trump does try to pardon himself, someone will sue him. The case will eventually land in the US Supreme Court. If the justices agree with Trump, he remains as president and his pardon is valid. Then there will be calls to amend the Constitution to address the issue for future presidents.
If the Court finds that Trump’s self-pardon is invalid, then he can be impeached and prosecuted for whatever crimes Special Counsel Robert Mueller’s office sees fit.
Impeachment means charging a public official with an offense. Impeachment does not mean that a public official loses her/his job immediately. The House of Representatives must approve Articles of Impeachment, which is similar to a criminal indictment. Then the Senate must hold a trial. If the president is convicted, THEN he is fired. Two presidents – Andrew Johnson and Bill Clinton – were impeached. Neither was convicted.
The Constitution says … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Article I. Section 3. Clause 7) So Trump could be impeached in the House, convicted in the Senate, and then face criminal trial in a regular court.
Once convicted by the Senate, if Trump would still refuse to leave office, he could be arrested and physically removed. Then Mike Pence would become president. And we have a whole new ballgame.
This stuff really is not complicated. All you have to do is read the Constitution. All of the words.
Go ahead. I dare you.
For More Information
Read the Constitution
US Justice Department: Office of the Pardon Attorney
Impeachment: Myths, Facts, and History