The ongoing investigation into possible Trump campaign collusion with Russian hacking and how it interfered with the 2016 election appears to be getting under President Trump’s skin.
He fired FBI Director James Comey, openly admitting that his purpose was to end the investigation. Then he lambasted the appointment of Special Counsel Robert Mueller, and even his own attorney general.
Now, it’s been reported that the president is considering pardoning his family, his campaign aides, and even himself.
The authors of the Federalist Papers considered the possibility that the president might pardon his own close associates to protect wrongdoing he was involved in. Their enlightenment era thinking considered this to be so scandalous that no president would likely do it – and if it did happen, that impeachment would soon follow. Yet even this brief consideration of the question didn’t touch upon a president pardoning himself. The very thought was too ludicrous to be worth mentioning.
Yet controversial and self-serving pardons have been fairly common, at least in recent years. President George H.W. Bush pardoned those involved in the Iran-contra scandal. Many accused him of doing so to shield his own alleged role in the Reagan-era incident.
Literally on his last morning in office, President Bill Clinton issued many pardons, including one for financier Marc Rich that prompted an FBI investigation for bribery. And President George W. Bush commuted the sentence of “Scooter” Libby, the former chief of staff of Vice President Dick Cheney.
What’s the purpose of the pardon power?
The pardon power has seen its more noble uses as well. George Washington used it to wipe the slate clean for participants in the Whiskey Rebellion. Abraham Lincoln and his successor Andrew Johnson, made liberal use of pardons and clemency to promote peaceful reconciliation during and after the Civil War.
Gerald Ford and Jimmy Carter both used the pardon power to issue sweeping grants of forgiveness to draft-dodgers after the end of the Vietnam War and the repeal of conscription.
For all the many men who have occupied the Oval Office, however, only one appears to have ever seriously considered the possibility of pardoning himself. At the height of the Watergate crisis and facing looming impeachment, several staffers of Richard Nixon later reported that a self-pardon was among the options being considered. Per the Constitution, that wouldn’t have prevented impeachment, but it could have potentially saved “Tricky Dick” from prison.
In the end, Nixon did not pardon himself, and instead resigned. Instead, Gerald Ford pardoned his disgraced predecessor, a wildly unpopular move that many blame for Ford’s loss in the 1976 election. Allegations of a “corrupt bargain” were tossed about, but both Nixon and Ford denied the charge to their grave.
So there is no precedent because no president has ever been audacious enough to try it – although Nixon at least reportedly contemplated it. There are arguments on both sides of the question. Some point to the plain text of the Constitution, which provides that the only limit on the pardon power is that it does not preclude impeachment by Congress.
Others point to the common law (and common sense) principle that the grantor and the recipient of a pardon can not be the same person.
Congress will ultimately decide the fate of President Trump
If a self-pardon were granted, and generated such outrage that the president were to be impeached and removed from office, that would be a strong signal that a self-pardon isn’t such a good idea. It would henceforth be considered as among the “high crimes and misdemeanors” that are impeachable offenses.
On the other hand, if Congress does nothing, and Trump continues in office, then he and all future presidents could rightly consider themselves as above the law. Remember that sentiment that Trump shared on the campaign trail about the loyalty of his voters:
I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.
Trump could try that out. Then our nation could judge whether we or not we have, in fact, descended into the tyranny that the framers once feared.