Can he do that? Presidental Self-Pardons

By Aditee Prabhutendolkar | Published 02/04/2021
Can he do that? Presidental Self-Pardons
Photo credit: Jonathan Ernst/NBC News

Following the attack on the Capitol by former President Trump’s most ardent supporters on January 6, 2021, it came as no surprise that he desired to pardon himself and avoid all legal consequences of his actions. Twitter, Facebook, Instagram, Google, and many other online platforms blocked either him or pages and apps dedicated to him, and his official impeachment took place about a week afterwards.

The ability to pardon comes from Article 2, Section 2 of the Constitution, which grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The founders intended it as a way for the President to help those who may unfairly fall victim to the harsh justice system--a merciful resort to the unfairly convicted and an essential check on the judicial branch. Of course, such a pardon could also easily be regarded as an abuse of power.

In the past 4 years, Trump used the power of pardon almost exclusively for personal gain. As scandals resurfaced in the past (Russian interference in the election, tax evasion, etc.), he repeatedly pardoned his political supporters. This is obviously a widespread abuse of power, but it’s still constitutional. Before the end of his presidency, there was one thing Trump had yet to do--pardon himself.

In 2018, he stated in an infamous tweet, that he has the “absolute right” to pardon himself, but that he wouldn’t because he had “done nothing wrong.” Regardless of what he believes, based on various sources and legal scholars, it’s unclear whether he’s actually allowed to pardon himself.

The only precedent was when former President Nixon wanted to pardon himself after Watergate. At the time, the justice department issued a memo saying that a presidential self-pardon would violate the “fundamental rule that no one may be a judge in his own case.” Nixon, of course, didn’t need to pardon himself because his former Vice President Ford pardoned him shortly after being sworn in to the presidential office (which is regarded as one of Ford’s most controversial moves). Given current circumstances, it’s safe to predict that President Biden is not going to pardon Trump.

If we were to go by a loose interpretation of the Constitution, a self-pardon should be fine because it’s not stated anywhere that it can’t be done. By a strict interpretation, it can’t be done because it’s not explicitly stated anywhere as allowed. But whether or not a self-pardon is legal is frankly irrelevant because of the dangerous ramifications of such an action. Pardons are granted to forgive the unfortunate from the unyielding law, not to help the privileged escape their sentences.

If Trump had been allowed to clear himself of all repercussions for inciting a deadly violent attack on the nation’s Capitol building, it would imply that the law simply doesn’t apply to presidents (and other government officials). And the very purpose of the Constitution is that no person is above the written law, following the idea enshrined in Magna Carta.

Presidents, as the head of the executive branch of the federal government, are meant to enforce the law. Naturally, they are expected not to break the law themselves, but they are in no way immune to it. If he were allowed to pardon himself, what would stop future presidents from doing the same? They would commit crimes to get into and keep themselves in office and then pardon themselves from being held accountable. It would incentivize them to rig elections and completely destroy the integrity of the American voting system, making our representative democracy a sham.

President Biden was sworn in on January 20, and Trump left office by pardoning Republican allies and business owners who were accused of tax fraud. Although he was found guilty and impeached by the house, he ended up not pardoning himself because it would have, at the very least, led to further scrutiny under state laws. A self-pardon would have been equivalent to a guilty plea.

We have yet to see whether more legal action will follow Trump, but for now it seems that the Biden administration has many more pressing issues to deal with: the pandemic, climate change, immigration, abortion, etc. This transfer of executive power leaves us with hope that this chapter of American history is finally over.

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