Pardon Me

For what it is worth, I am writing this article on November 16, 2020.

As I had predicted in an earlier article, the state of American politics and the Presidential Election is a bit of a train wreck.

While it appears that Joe Biden has won both the popular vote and the Electoral College, President Donald Trump has refused to concede and has filed numerous lawsuits challenging the voting process.

How will all this play out? Beats me...wish I knew. However, for the sake of this article, let’s assume that Biden will be the next president.

One of the things that you can’t deny about President Trump is that he is no stranger to the U.S. legal system. He had been involved in numerous lawsuits before becoming President and is currently the subject of an ongoing investigation in New York.

With that being said, what will happen to him when he is no longer President? Good question. And one that lawyers like to discuss over cocktails. Could President Trump pardon himself? This is uncharted territory. So let’s start at the beginning.

It is well established that a U.S. President has broad powers to issue pardons to individuals involved in criminal investigations. But those powers are not unlimited. For example a President cannot issue a pardon for offenses occurring on a state level.

This is clarified in the Constitution. Specifically, the power to issue pardons is found in the U.S. Constitution, Article II, Section 2, Clause 1 which states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the Principal Officer of the act of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Based on the language noted above, it is widely accepted that a President cannot pardon someone for a state offense, as the Constitution limits the power to “[o]ffenses against the United States.”

In light of this, President Trump’s pardon powers would not extend to state criminal violations such as the possible violations under investigation by New York. Thus upon the end of his Presidency, whether next year of four years later, President Trump would be subject to such action.

Even though the President’s pardon powers don’t help much with state offenses, President Trump could issue a pardon for presumptive crimes occurring at the Federal level. For those of you of a certain age, this would resemble the action taken by President Ford when he pardoned President Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from Jan. 20, 1969, through Aug. 9, 1974."

Accordingly, President Trump could issue a pardon for family members (and others) for “crimes” occurring during his presidency.

Of course, this begs the question can President Trump pardon himself?

That is the million-dollar question. To be honest, experts on constitution law vary on this question. The language noted above does not appear to exclude this action. And, more importantly, it has never been addressed by the U.S. Supreme Court.

With recent appointments to the U.S. Supreme Court made by the President, I would say that the likelihood of the Court ruling in his favor, should it be presented with this issue, has increased slightly. However, this is simply my opinion, and based on nothing more than a feeling.

I do not think our founding fathers ever contemplated the pardon powers granted in the U.S. Constitution to be used by a sitting President to pardon him or herself. It just feels wrong. The ability to be elected President and then to act with disregard to federal law knowing that you can pardon yourself before leaving office does not seem to be the intent of our founding fathers.

However, just because I do not think something was intended by our founding fathers does not mean that I am right. Shoot, I am wrong on numerous issues several times a day. Ultimately I think this issue will have to be determined by the U.S. Supreme Court and I think that will happen sooner than we may think.

###

The contents of this article are intended to convey general information only and not to provide legal advice or opinions. The contents of article should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. No action should be taken in reliance on the information contained on this article and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues.