In recent days the President and some of his attorneys have asserted that the President can pardon himself in the Department of Justice’s ongoing obstruction of justice investigation. These statements are immediately followed by a qualification that the President has done nothing wrong, and therefore, does not need to pardon himself. Constitutional scholars are torn on the extent of the President’s pardon powers as to him or herself, and whether or not the President can be indicted.
It is also of worthy of note, that neither Richard Nixon nor Bill Clinton ever raised, at least in a public forum, the idea of pardoning themselves. I suspect both of these men felt that that would be a constitutional aberration, not intended by the framers.
The Supreme Court has addressed the pardon power on several occasions, finding that the pardon power “may be exercised at any time after [the commission of the offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The Court has also observed “if the witness has already received a pardon, he can no longer setup his 5th Amendment privilege, since he stands with respect to such offense as if it had never been committed.”
The pardon power is only limited in cases of impeachment. The constitution is clear, as are Supreme Court decisions, that the President cannot pardon someone for a federal offense if the individual is subject to impeachment proceedings. In other words, pardoning a crime does not take away the ability to impeach that individual.
If we follow the logic of this process, if the President were to pardon himself from all acts of obstruction of justice, he would have, in fact, admitted that he obstructed justice, otherwise the pardon would be void ab initio based upon the holdings of the Supreme Court. Thus, he could be impeached for that crime based upon his effective admission. Further, if he were to pardon other individuals who might have information about the obstruction charge, then those individuals, although freed-of the threat of prosecution, would also be in a position where their 5th Amendment rights would be extinguished and no longer available to protect them, and obviously, if they had information about the President, no longer protect the President.
The history of the pardon power goes back to medieval times, and winds its way through to colonial times as it became embodied in many state constitutions prior to the adoption of our constitution. The Supreme Court has also held that the power to grant to pardons also rests with Congress through legislation typically in the form of acts of general amnesty. It is also important to note that the President’s pardon powers only cover federal crimes, not to get too wonky, but while the 5th Amendment privilege would likely be eliminated as to a federal investigation, it might not be as to a state investigation, in fact, it likely wouldn’t be.
It is obvious given the comments of Senator Graham and others, that a pardon issued by the President to himself, would likely engender a fierce bi-partisan response from Congress. Many members have said somewhat in passing, that such an act would likely lead to impeachment. The implication being that the use of the pardon power was an impeachable offense. I think that those uttering those statements, fail to recognize that if the President did pardon himself, he would have in fact admitted that he obstructed justice, otherwise, as noted above, there would be no valid pardon.
From a historical and legal perspective, this a fascinating saga. From the point of view of governance, it is a sad commentary on the state of our government.
Mr. Owens is a former member of Congress representing the New York 21st, a partner in Stafford Owens in Plattsburgh, NY and a Senior Advisor to Dentons to Washington, DC.
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