Legal things, theoretical edition
Jun. 6th, 2018 12:49 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwexQuestion: Can Trump pardon himself?
(it's important to contextualize the following theorizing with "I am not a lawyer". Then again, neither is Trump and he also has idiots on his legal team, a handicap I don't have. Although I use "he" throughout this entry I think the logic would apply equally if Ms Clinton or any other-gendered person was president.)
The question is one of those that law professors love to swat around abstractly. The closest we've ever gotten to a real formulation of the question is, reputedly, Nixon asking it of his Justice Department. He got back a "hell no!" answer, apparently. Then again, I recently discovered that Nixon did not want Ford's pardon, which contradicted a long-held belief so I remain open to learning new things.
I also believe the answer is "no" but not because it's written into the Constitution; rather, I think it's so evidently no that the Founders never considered it necessary to write down. To understand that, let's go back to some basics.
First, why does the President have a pardon power in the first place? Why write that into the Constitution? The best theory I've heard (and I'm also not a Constitutional scholar, so take this with a grain of salt) is that Article II enumerates a Presidential pardon power because the President is also head of the branch of government that prosecutes crimes. Prosecutors have discretion about which crimes to pursue, and the pardon power then gives that branch the ability to say "these are the things that we as a society choose to forgive; those people are considered to have paid their debt and can be forgiven."
Like any discretionary power it can be abused, but this is the core justification - somewhere, there must be a way to state what we as a society forgive and that power should not rest with those who make the laws nor with those who decide if the laws have been broken. It's true that the pardon power was traditionally vested in monarchs, but even though nobody wanted the new Executive to be a king, they left this in.
The Constitution is both weirdly silent and weirdly specific in its notion of crimes. That is because at the time of framing, all crime was state crime and as such a person - including the President - would be prosecuted for such crimes. The Presidential pardon power doesn't extend to state crimes so the framers likely anticipated that a President would not be able to pardon himself for the vast majority of possible infractions. It's pretty well accepted that the founders did not imagine the growth and eventual supremacy of the Federal government. Estimates I've seen say that there are now over 3600 enumerated Federal crimes.
By contrast, the only three specific Constitutional crimes are piracy, counterfeiting, and treason. Elsewhere, the Constitution limits what a President can pardon for, specifically excluding impeachable offenses. But then the language of what someone can be impeached for is itself vague (high crimes and misdemeanors). So the President can, in theory, pardon someone else for treason, even a treason he's involved in (how apropos!) but the remedy for that is impeachment.
So the President can pardon and that's why; can he self-pardon? The framing of having trials that are outside the presidential prerogative (state level) and the ideal of both the Declaration and the Constitution establishing no one as above the law lead me to say no, because the alternative is a contradiction. That is, if the President can self-pardon then he becomes above the law. A presidential self-pardon violates the commonly accepted intent of the founding documents.
Unfortunately, the law doesn't operate by this kind of logic. It operates by reference to original sources (laws, the Constitution) and precedents (previous relevant decisions). This is what permits Trump and his legal monkeys to claim that he can self-pardon. There's nothing in the source documents, nor is there good case law, to say the opposite. You have to go back to contemporary writings, such as The Federalist (http://www.constitution.org/fed/federa10.htm) where you find language like: "No man is allowed to be a judge in his own cause..."
Ironically, should this matter ever come to the courts, the people most likely to refer to these types of documents are the so-called Originalists, of whom the late Justice Scalia was probably best known. That we might have to rely on the most right-wing conservatives to defend us against a rogue president seems like the most 2018 thing this week. But stay tuned, it's only Thursday.
(it's important to contextualize the following theorizing with "I am not a lawyer". Then again, neither is Trump and he also has idiots on his legal team, a handicap I don't have. Although I use "he" throughout this entry I think the logic would apply equally if Ms Clinton or any other-gendered person was president.)
The question is one of those that law professors love to swat around abstractly. The closest we've ever gotten to a real formulation of the question is, reputedly, Nixon asking it of his Justice Department. He got back a "hell no!" answer, apparently. Then again, I recently discovered that Nixon did not want Ford's pardon, which contradicted a long-held belief so I remain open to learning new things.
I also believe the answer is "no" but not because it's written into the Constitution; rather, I think it's so evidently no that the Founders never considered it necessary to write down. To understand that, let's go back to some basics.
First, why does the President have a pardon power in the first place? Why write that into the Constitution? The best theory I've heard (and I'm also not a Constitutional scholar, so take this with a grain of salt) is that Article II enumerates a Presidential pardon power because the President is also head of the branch of government that prosecutes crimes. Prosecutors have discretion about which crimes to pursue, and the pardon power then gives that branch the ability to say "these are the things that we as a society choose to forgive; those people are considered to have paid their debt and can be forgiven."
Like any discretionary power it can be abused, but this is the core justification - somewhere, there must be a way to state what we as a society forgive and that power should not rest with those who make the laws nor with those who decide if the laws have been broken. It's true that the pardon power was traditionally vested in monarchs, but even though nobody wanted the new Executive to be a king, they left this in.
The Constitution is both weirdly silent and weirdly specific in its notion of crimes. That is because at the time of framing, all crime was state crime and as such a person - including the President - would be prosecuted for such crimes. The Presidential pardon power doesn't extend to state crimes so the framers likely anticipated that a President would not be able to pardon himself for the vast majority of possible infractions. It's pretty well accepted that the founders did not imagine the growth and eventual supremacy of the Federal government. Estimates I've seen say that there are now over 3600 enumerated Federal crimes.
By contrast, the only three specific Constitutional crimes are piracy, counterfeiting, and treason. Elsewhere, the Constitution limits what a President can pardon for, specifically excluding impeachable offenses. But then the language of what someone can be impeached for is itself vague (high crimes and misdemeanors). So the President can, in theory, pardon someone else for treason, even a treason he's involved in (how apropos!) but the remedy for that is impeachment.
So the President can pardon and that's why; can he self-pardon? The framing of having trials that are outside the presidential prerogative (state level) and the ideal of both the Declaration and the Constitution establishing no one as above the law lead me to say no, because the alternative is a contradiction. That is, if the President can self-pardon then he becomes above the law. A presidential self-pardon violates the commonly accepted intent of the founding documents.
Unfortunately, the law doesn't operate by this kind of logic. It operates by reference to original sources (laws, the Constitution) and precedents (previous relevant decisions). This is what permits Trump and his legal monkeys to claim that he can self-pardon. There's nothing in the source documents, nor is there good case law, to say the opposite. You have to go back to contemporary writings, such as The Federalist (http://www.constitution.org/fed/federa10.htm) where you find language like: "No man is allowed to be a judge in his own cause..."
Ironically, should this matter ever come to the courts, the people most likely to refer to these types of documents are the so-called Originalists, of whom the late Justice Scalia was probably best known. That we might have to rely on the most right-wing conservatives to defend us against a rogue president seems like the most 2018 thing this week. But stay tuned, it's only Thursday.
no subject
Date: 2018-06-07 04:11 pm (UTC)no subject
Date: 2018-06-07 04:59 pm (UTC)no subject
Date: 2018-06-07 06:29 pm (UTC)And yes, the HoR has wide latitude on what can go into articles of impeachment.