By Spero Lappas
On Aug. 5, 1974, a lawyer named general Mary Lawnton wrote a memo for her bosses at the Justice Department. Today, few people remember her but that memo has recently become very important. Its title is “Presidential or Legislative Pardon of the President.”
Lawnton addressed a question that no court had ever decided, a critical question to Watergate-obsessed America: can a president pardon himself?
Under the fundamental rule that no one may be a judge in his own case, she wrote, it would seem that the question should be answered in the negative. Any president could resign, however, and be pardoned by the new president. Three days later, Richard Nixon followed her cue, resigned the presidency, and was pardoned by Gerald Ford.
The last few weeks have seen Donald Trump struggling to hold onto the presidency. Lawsuits have been filed by the dozens and Trump has railed incessantly about electoral purity. Despite his contention that he won’t concede a “rigged” election, his struggle may have another motive.
The New York Times has reported that he fears a post-presidency in which he enjoys no official immunity from prosecution. The Guardian puts it more starkly: Losing the White House could land him in court or even behind bars. No wonder Lawnton’s opinion has gotten so much attention lately. What if Trump pardons himself before Jan. 20? Would that work?
The Constitution lets presidents grant Reprieves and Pardons for “Offences against the United States.” It imposes few limits on this power, agreeing with Alexander Hamilton that the benign prerogative of pardoning should be as little as possible fettered.
The Constitutional debate about pardon power centered mostly on whether a single person, even a president, could be trusted with it. Edmund Randolph cautioned that an unscrupulous president might camouflage his own treason by protecting his co-conspirators; and George Mason agreed that a crooked executive could “thereby prevent a discovery of his own guilt.
The Framers considered requiring the Senate to approve pardons but ultimately gave the power to the president alone. After all, they reasoned, if we can’t trust the president whom can we trust? James Iredell summed up the prevailing view: No President would risk earning the damnation of his fame to all future ages.
This debate and its conclusion have prompted Trump to claim an absolute right to pardon himself. Congressman Matt Gaetz recently encouraged him to pardon everyone from himself to his administration officials to Joe Exotic if he has too. A pardon for Joe Exotic, the Tiger King who tried unsuccessfully to arrange a murder seems unlikely. But who knows?
But what about the bigger question? Can Trump pardon Trump?
Presidential pardon power is extensive but not unlimited. First, it only applies to federal crimes. New York state officials are reportedly investigating Trump already, and if they uncover evidence of a crime a presidential pardon would not stop a state prosecution.
Next, a pardon can only erase past crimes. A person who commits a crime after being pardoned is still in trouble. No president can give himself, or anyone else, a lifelong pass to break the law whenever he wants.
Finally, no one can be pardoned from an impeachment. But we already knew that.
Mary Lawnton wrote that the fundamental rule against being a judge in one’s own case argues against self-pardons, and other legal scholars have agreed.
But that rule is an ethical guideline, not a legal mandate. The Supreme Court has never said that self-interest would prevent self-pardons. When Amy Coney Barrett was questioned at her confirmation hearing she knew it was an issue that she may have to decide someday.
“That would be a Constitutional question,” she said. “That’s not one that I can answer.”
What else is there? Is Trump afraid that the verdict of history will earn him the damnation of his fame? Probably not. Neither does he seem to believe that pardons indicate guilt; he pardoned Michael Flynn despite calling him “innocent.” And nothing in the Constitution requires that pardons serve a worthy cause. The Framers knew that presidents could abuse pardons, but in 1787 that seemed like a chance worth taking.
Many lawyers agree see Trump’s post-presidency as perilous, and journalists have reported that he is worried. Because he might actually take Gaetz’s advice, experts are dissecting the Constitution to find an interpretation which forbids what its plain language seems to allow.
Meanwhile, many citizens worry that if Trump has indeed committed federal crimes he may escape accountability. Those worriers might find some solace in another limit to the pardon power: it protects against the punishment of criminality, not necessarily against the process of accusation.
Even if Trump does grant himself a legally questionable self-pardon, he might still be charged with federal crimes. If so, he could be arrested, mug-shotted, dragged into court, and made to post bail, all before the case reaches the stage where he can assert that his self-pardon provides a defense to all charges. The Supreme Court would ultimately have to decide if he’s right.
Maybe Justice Barrett was smart not to tip her hand.
Spero Lappas, an author, lawyer and lecturer, writes from Harrisburg. His work appears occasionally on the Capital-Star’s Commentary Page.