Matthew T. Mangino
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President Donald Trump tweeted, I have the absolute right to PARDON myself. Can the president grant himself a pardon? Yes. Will it ensure that he does not go to jail? No.
Pursuant to Article II, Section 2 of the United States Constitution, the Power to grant Reprieves and Pardons for Offenses against the United States is vested in the president. In the nearly four years that Trump has been in office he has granted 27 pardons and 11 commutations.
Whether Trump can pardon himself is an unresolved legal question. No president has ever tried to pardon himself. As a result, no federal court, including the United States Supreme Court, has directly addressed the question.
If Trump pardons himself, Biden should un-pardon him
In 1974, President Richard M. Nixon’s own Justice Department’s Office of Legal Counsel issued an opinion stating that Nixon could not pardon himself, based upon “the fundamental rule that no one may be a judge in his own case.” Likely for that reason, Nixon never pardoned himself.
If Trump were to try to take that step, presumably under the theory that Democrats will retaliate against him, Biden should first refer the question to the Office of Legal Counsel. If the OLC in 2021 concurs with the precedent of that office in 1974 which is highly likely this legal opinion would constitute a second piece of guidance shoring up the position that self-pardons are inherently unconstitutional. It would provide a basis for President Biden to then issue an executive order nullifying Trump’s action.
If Donald Trump took the unprecedented step of issuing himself a presidential pardon on his way out of the White House, Joe Biden should reverse it and take the protection away, a constitutional expert opined.
Ken Gormley, an expert on the U.S. Constitution and president of Duquesne University, wrote in an op-ed for
The Washington Post that Biden should not let Trump get away with breaking precedent by giving himself broad protection against potential prosecution. Responding to reports that he was considering issuing himself a pardon, Gormley wrote that it was not clear if Trump even held the legal capability to issue a self-pardon, but Biden should take a stand if he were to try it.
Presidents shouldnât have blanket pardon power
Clemency and pardons are ripe for abuse â but ending the practice entirely would be unjust too.
By David ShribmanUpdated December 17, 2020, 3:00 a.m.
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Michael Flynn, who was President Trump s first national security adviser, pleaded guilty to lying to the FBI but got pardoned by Trump.Andrew Harrer/Bloomberg
In the next few weeks, President Donald J. Trump, with his unerring instinct for provoking controversy, very likely will issue a flurry of pardons or commutations â to several of his onetime aides, perhaps to whistleblower Edward Snowden or lawyer Rudolph Giuliani, maybe even to members of his family and to himself. A blizzard of outrage will follow, just as it did when Gerald R. Ford pardoned Richard M. Nixon, when George H.W. Bush pardoned former defense secretary Caspar Weinberger and other Iran-Contra officials, when Bill Clinton pardoned financier Marc Rich, and when Barack Obama commuted