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Declaration of a Peaceful Revolution

Yes, Trump can pardon himself, but …

Can a president pardon himself? This seems like a strange concession from Nancy Pelosi, still visibly (and understandably) furious over what happened in the Capitol riot in this 60 Minutes interview aired yesterday. Pelosi wants Donald Trump removed one way or the other, preferably by Mike Pence exercising the 25th Amendment option but through impeachment if necessary. For one thing, Pelosi seems worried about Trump issuing a blanket pardon for all the rioters as a final thumb in the Beltway’s eye on his way out.

Pelosi seems less worried about a presidential self-pardon, and almost resigned to it:

Lesley Stahl: What if he pardons himself?

Nancy Pelosi: What if he pardons these people who are terrorists on the Capitol? What if he does that?

Lesley Stahl: Or pardons himself?

Nancy Pelosi: He can only pardon himself from federal offenses. He cannot pardon himself from state offenses and that’s where he’s being investigated in the state of New York.

Lesley Stahl: There is a possibility that after all of this, there’s no punishment, no consequence, and he could run again for president.

Nancy Pelosi: And that’s one of the motivations that people have for advocating for impeachment.

This question is one of the few remaining mysteries in constitutional authority. Think of it as the parallel to the open question as to whether Congress can impeach and bar from office anyone who isn’t currently in office. The authority to pardon comes from Article II, Section 2, and it is both plenary and irrevocable:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Note well that there is no limit to this power — at least not in the text. In practice, no president has ever tried it, not directly anyway. There has always been some who suspect that Richard Nixon’s resignation came along with some sort of agreement that Gerald Ford would pardon him, which Ford denied and no one ever produced evidence to substantiate. However, Nixon theoretically could have pardoned himself before resigning, and had a lot of reasons to want to try it … and didn’t.

Maybe the solution is to reform the pardon power, or eliminate it altogether. Andy McCarthy argues for the latter after two decades of embarrassment over it:

Moreover, since their inception in the 1980s, the federal sentencing guidelines have substantially succeeded in enforcing uniformity in sentencing for similarly situated defendants. Though the guidelines are advisory, judges usually follow them. Formerly, the system was sullied by disparate sentences based on the proclivities of the judge rather than on the nature of the offense or the recidivism of the offender. Now, sentencing is more just. And while plea-bargaining undeniably raises the conviction rate, defendants benefit from reduced charges and diversion from prison sentences.

All of this renders vanishingly small the number of cases in which the pardon power might be appropriate to address true injustice. And there are other, fairer ways to do that. Convictions may be vacated and expunged by legislation. The president could seek Congress’s cooperation in granting clemency when justice and consensus warrant doing so. As we have seen throughout the pandemic, moreover, the executive branch has the power to grant early release on humanitarian grounds.

There is simply no good reason we should be in the position of indulging the controversy du jour over whether Presi­dent Trump has the power to pardon himself (he does, by the way), and whether he is in enough undeserved hot water to use it. The modern history of the pardon prerogative is the antithesis of benign. Its indecorous use undermines rather than enhances our ideal of a single, enlightened standard of justice for all. We would be better off without it, and the Constitution should be amended to that end.

This feels like throwing out the baby with the bath water. Yes, pardons and clemencies get handed out for political benefit and personal attachments, but some of them still are worthy — such as the commutations and pardons of non-violent drug offenses issued by both Donald Trump and Barack Obama for cases based on previous federal sentencing guidelines.

Why not reform the pardon process through the same constitutional amendment process? Several states require governors to work through a commission before issuing clemency actions in one configuration or another. It could be just as simple as requiring a two-thirds vote in Congress to override a presidential clemency action, or as complicated as an evenly balanced standing committee to approve each such action. That would tend to eliminate the excesses and check this particular authority while still allowing for its use when necessary for the interests of justice. It might even allow for better and more even-handed justice if the potential political blowback from a clemency action gets shared across both branches.

After watching the self-serving pardons of Donald Trump and the blatantly corrupt pardons from Bill Clinton, we can all agree that reform is necessary. But let’s work incrementally to see if we can find a happy medium first — or at least give it a try.

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