Yes, Trump Can Pardon Himself – and Must

Can President Donald Trump pardon himself?  Yes. I am an attorney.  Rarely will you ever get a clear, yes or no answer from any attorney.  Attorneys are known for giving long-winded "Well it depends….  On the one hand / on the other hand" answers.  But on this topic, here is the answer:  Yes.  Period.   And Trump must pardon himself, his family and anyone who supported him.

Why is this a clear, easy answer?  Because reviewing the contrary arguments shows they are thoroughly without merit...  mere wishful thinking. First, there is no downside.  There are never guarantees with judges.  But there is no reason for President Trump not to pardon himself. Second, the very purpose of the pardon power is a check and balance against the other two branches of the Federal government.  It is undeniable historically and legally that over-ruling the other two branches is why there is a pardon power.  (Contrast that with clemency, which is often but not necessarily an act of mercy.  A President can issue clemency where the guilt of the convicted person is not objectionable, but the sentence imposed is a political or rational abuse by the lawmakers or the judiciary as excessive.) So a pardon is issued precisely to block the excesses of the legislative or judicial branches.  We are clearly in a spasm of hysterical over-reach and excess.  The madness of this moment is why there are pardons. It is clear that Democrats and inside-the-beltway Republicans are going to continue to tear the country apart.  Therefore, this is exactly the time when the pardon power must put a halt to this.  In this case the madness of the mob is directed at Trump. Third, there is no one to judge the question.  If Trump pardons himself, even the U.S. Supreme Court cannot (validly) disagree.  A "non-justiciable question" (sometimes "a political question") is one where there are no standards that a court can use to decide the issue.  The Constitution invests the President with the unlimited, plenary power to issue a pardon.  There are no conditions available for a federal court to look to when weighing the issue.  Therefore, under well-established law and precedent, even the U.S. Supreme Court is prohibited from taking up a case where there are no standards to guide a resolution.  Courts might violate precedents.  But they shouldn't.

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Fourth, opponents rely upon the various approaches to pardons in the various Colonies before the Constitution was written.  But there is no pattern to be found.  And none of them addressed this question.  So, nothing from American legal history speaks to the question.  There is nothing there. Fifth, opponents rely upon one or two speeches in the Constitutional Convention, which had nothing to do with this question, but touched on whether a pardon should be unlimited or limited.  But no action was taken.  There were 70 members of the Convention.  One or two speeches do not represent the entire Convention.  If anything, the failure of the Convention to adopt anything mentioned by those one or two speeches suggests a rejection in the final Constitution.  See, for example,  II Farrand's Records 626 (Sept. 15, 1787). Randolph's motion was defeated. Id. at 627 ("Professor McConnell interprets this colloquy as supporting the existence of a self-pardoning power.").  Referenced in Point of Order. Sixth, opponents rely upon English law as the backdrop for the U.S. Constitution.  But there is only one such example, which never came to any conclusion.  The Earl of Danby was caught up in scandals of corruption (the actual, bribery, criminal kind, not just general crookedness) which was widely believed to incriminate King Charles II as part of the criminality.  "The British exception did not relate to self-pardons because the king, being subject neither to impeachment nor the criminal law, had no reason to pardon himself."  Point of Order, citing to Brian C. Kalt, Pardon Me: The Constitutional Case Against Presidential Self-Pardons, 106 Yale L. J. 779, 783, 785 (1995). But in 1678, the King was in the process of pardoning Lord Danby, which was seen as a way of hiding the King's own criminal conduct.  The controversy had many twists and turns, but ultimately nothing came of it.  So, nothing from English law or history guides us in answering the question.  No decision was ever reached.  (The King actually dissolved Parliament to avoid the issue, which is extreme, but we do not have an actual precedent).

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Seventh, opponents rely upon textual analysis, that is scrutinizing the actual words of the Constitution.  However, those arguments are classic misdirection and fallacies stacked upon fallacies as a house of cards.  There is nothing in the text of the Constitution which prevents a self pardon. Professor Michael McConnell argues (referenced in the article) that the exception that a pardon does not stop impeachment exists primarily to ensure that the president cannot prevent his own removal, an exception that would be unnecessary if the president could not pardon himself at all.   If a President could not pardon himself, there would be no need for the exception that a pardon does not stop impeachment.  Opponents respond that it is not only the President who can be impeached.    Opponents also argue that the Constitution uses the word "grant" for a presidential pardon, implying that one person grants a pardon to another.  However, this is unpersuasive.  In the law, one can grant to oneself all sorts of things.   One can be both the grantor and grantee of a real estate deed, perhaps for the purpose of correcting a deed or adding or removing a co-owner.  One can create a trust and appoint oneself as the beneficiary Eighth, one contrary argument is that a judge cannot be a judge in his own case (their wording not mine).  That is argued in a 1974 Department of Justice Memorandum.  However, in what way is a President a judge?  He's not.  The mere assertion that a President would be acting as a judge – without any explanation for why that might be so – trumpets the severe weakness of the argument.  Making no attempt to explain why a President would be acting as a judge should doom that argument.  A pardon is nothing like a judge deciding a case.  In fact, any President issuing a pardon is explicitly revoking and rejecting what a judge has or might decide.  The historical purpose of a pardon is to over-turn over-reach by the legislature and/or judiciary.  It is the anti-thesis of acting as a judge.  

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Related topics:   The pardon power concerns "offenses against the United States."  This is broader than "crimes."  When pardoning members of his Administration, Trump should probably include all allegations that may have occurred since Trump announced his candidacy, but exclude any crimes committed in their personal life.  But for himself and his family, it is clear that anything in their lives is being used as a pretext or proxy for political harassment.  So for the Left, there is no distinction between their private lives and their political challenge to the establishment status quo. "Offenses against the United States" means allegations under Federal law.  But a great many State laws merely duplicate Federal laws.  Trump should explicitly pardon himself and others for redundant State law equivalents of Federal crimes.  Arguably, under pre-emption analysis, State law crimes would be pre-empted because they would frustrate the Constitutional authority to pardon the Federal allegations.  At the least, that would keep people arguing about it for years. A pardon is effective if it is actually delivered to the person being pardoned.  Well, there is nothing in the U.S. Constitution about that, but to be safe from challenge, a pardon should be personally delivered to the person pardoned quickly.  So if Trump scrawls out a pardon on a napkin on Air Force One at 11:59 A.M. on January 20, 2021, it is effective when actually received by the person pardoned, even if that happens after Trump's term of office has ended.

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Is delivery required?  Not by the Constitution.  But judges and others have argued that a pardon can be revoked if it has not yet been delivered.  See  In re De Puy, 7 F. Cas. 506, 3 Ben. 307; 2 Am. Law T. Rep. U. S. Cts. 130; 10 Int. Rev. Rec. 34; 4 Am. Law Rev. 188; 16 Pittsb. Leg. J. 121 (1869) So let's just say for the sake of prudence the pardon must get delivered.  No, Trump does not have to do that himself.  In fact under the "mail box rule" if he simply puts it in the mail, it would be considered "delivered" as soon as the document has been entrusted to the U.S. Postal Service. Yes, President Trump can issue a pardon in secret.  There is no requirement to publicly announce that he has issued a pardon, to himself or anyone.  In fact, in 2017 Democrats were trying to pass legislation to require public disclosure of a pardon precisely because they were convinced that Trump has the power to pardon people in secret. How would that work?  A pardon becomes relevant only if a person is being investigated criminally, charged with a crime, put on trial for a crime, or convicted of a crime.  So, a person who has been pardoned in secret would produce the pardon to halt prosecution. As an attorney, I would recommend that the pardon letter or document should be notarized or witnessed, so that it is very clear that the pardon was issued before Trump's term of office has ended on January 20, 2021.