December 11, 2020
Most scholars argue that presidents cannot pardon themselves. More to the point, even if they did, such a move would be incredibly risky and likely to ignite a constitutional crisis in the United States.
Jonathan Turley, a professor of public interest law at George Washington University, wrote in The Washington Post:
"Such an act would make the White House look like the Bada Bing Club. After a self-pardon, Trump could wipe out the Islamic State, trigger an economic golden age and solve global warming with a carbon-eating border wall ? and no one would notice. He would simply go down in history as the man who not only pardoned his family members but himself."
Michigan State University law professor Brian C. Kalt, in his 1997 paper "Pardon Me: The Constitutional Case Against Presidential Self-Pardons," stated that a presidential self-pardon would not hold up in court.
"An attempted self-pardon would likely undermine the public's confidence in the presidency and the Constitution. A potential meltdown of such magnitude would be no time to begin legalistic discussion; the political facts of the moment would distort our considered legal judgment. Looking at the question from a cooler vantage point, the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."
The courts would likely follow the principle stated by James Madison in the Federalist Papers. "No man," Madison wrote, "is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."
That Trump would even try to do this shows his disdain for norms that have been observed from our country?s beginning. People with power must not use that power to benefit themselves. Officials who clandestinely solicit bribes to benefit a special interest or benefit themselves, go to prison. Many governors, Congressmen, and even business executives who benefit from inside information or take money to favor a supplicant go to prison.
Trump has perverted his pardon power to pardon a former governor of Illinois imprisoned for trying to sell his appointment choice of a senator to replace Barack Obama, who had left for the presidency.
Trump is pardoning a raft of his loyal criminal cult with the ostensible benefit of guaranteeing their silence to protect Trump from prosecution. One of the worst of them, former General Michael Flynn, admitted in court his own guilt several times when he was convicted of lying about his conversations with operatives of Vladimir Putin. He was never even tried or convicted for the larger crime of taking money from the Turkish dictator for attempting to kidnap an enemy who had been given refuge in the United States.
Pardons are supposed to be for regretful wrongdoers. Flynn is unrepentant and boldly suggested that Trump declare martial law and reverse the election, seizing power. This is a very bad actor.
Others in Trump?s inner circle were on the Putin payroll (Maniford, for one), heavily involved in affairs in the Ukraine and deeply in debt to a Russian olegarch. These are criminal acts. Trump has assured his pardon as well.
The important issue of avoiding nepotism, benefitting family members who are free to violate the law for monetary gain, is also blatently being trashed in "preemptive pardoning" by Trump. Nepotism rules have not been tight enough to prevent Trump from appointing and enriching his own family members in the government Perhaps Congress can address this with a law. Norms are not enough.
Former governor of Tennessee Lamar Alexander was quietly installed three days early in office to prevent the outgoing criminal governor from pardoning a long list of violent felons. Alas, not federal law.
Congress was able to amend the constitution to permit inauguration in January, not March, as it originally was. Nobody imagined a lame duck session of a defeated president to provide such an opportunity for mayhem. It is time to close the gap between election and inauguration.
Dr. Laina Farhat-Holzman is a historian, lecturer, and author of "How Do You Know That? Contact her at Lfarhat102@aol.com or www.globalthink.net.