Opinion Trump has it all wrong: He needs someone else to be president
“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal,” Laurence H. Tribe, Richard Painter and Norman Eisen wrote in The Post in 2017. “It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.”
They explained, “The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process.” Otherwise, they pointed out, “many a deposed king would have been spared instead of going to the chopping block.” Both the principle that “one cannot be Judge and attorney for any of the parties” and simple logic suggest the president cannot pardon himself.
If it were otherwise, why would there be a prohibition under Justice Department guidance against prosecuting a president (only) in office? Indeed, the Justice Department, in its original 1973 Office of Legal Counsel (OLC) memo and an update in 2000, looked at the portion of the impeachment clause that provides if the president (or other officer) is convicted, that person “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The Justice Department found that the clause was intended to “permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.”
Moreover, in considering whether failure to prosecute in office would interfere with prosecution after office (such as by running of the statute of limitations), the OLC never entertained the thought that self-pardon could eliminate any prosecution. If a president could always escape prosecution by self-pardon, the issue of prosecution in office would be moot, and the guidance would not need to hold out the promise of later prosecution.
If “self-pardons” were real, then any president, including Richard M. Nixon, would have had no inhibition about committing any crime and no need to hope for pardons by a successor. (Why would not every president take advantage of the opportunity to engage in a crime spree, secure in the knowledge he could pardon himself on the way out the door?)
Constitutional expert Philip Bobbitt wrote in Lawfare in 2018 that it’s not even a close call despite punditry declaring the plausibility of self-pardons. (“There is a good deal less warrant for doubt about the question of pardons with regard to one singularly powerful official who, if malignant, is capable of vast criminal mischief, than the recent presentation of the issue would suggest.”)
“[I]f a president could grant a pardon to himself, he might unlawfully refuse to leave office if convicted by the Senate,” Bobbitt wrote. “Here it is useful to recall James Wilson’s reminder at the Constitutional Convention: ‘if [the President] be himself a party to the guilt he can be impeached and prosecuted.”
Even if you believe that there is some argument in favor of self-pardon (although the more one spins out scenarios, the less sense it makes), Trump cannot guarantee himself a pardon unless the pardon comes from someone else. What good is a pardon unless prosecutors recognize it is inviolate, as was the case when a former president (Nixon) received a pardon from a successor?
Trump’s notion that he can avoid prosecution by winning an election has another obvious flaw: No president has the ability to pardon himself or anyone else for state crimes. Though he might imagine (falsely, in my view) that he can slip through the clutches of Manhattan prosecutor Alvin Bragg (at least with regard to a felony), he could still face prosecution in Georgia for his alleged election interference. If an indictment comes, as expected, in August, we will get a glimpse of the pound of evidence amassed against Trump, perhaps bolstered by testimony from his former associates. If Trump really wants to avoid prosecution — and punishment, if convicted — for alleged state crimes, he would have to arrange a plea, something he has refused to consider, or flee to a jurisdiction without extradition. Running for president won’t help those cases go away.
Nevertheless, Smith’s cases remain the biggest problem for Trump. Trump isn’t going to get Smith, who already has found what he believes to be damning evidence of federal crimes, off his back by running for or even winning the presidency. Trump might have other reasons for running (hunger for attention, the ability to raise money with campaign pleas). That said, his lawyers — plus Republican legal figures (former Republican attorneys general and White House counsel) — would do well to explain to him that his only hope of evading Smith and foreclosing the possibility of federal prison time rests with pardon from a different president. He should plan his future political moves accordingly.
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