A Legal Question
It’s settled law that the power of a President to issue pardons is absolute. (The same is true of 41 state governors; the remaining states have a board that performs the same function vice their chief executive.) A pardon is not subject to being overturned by legislative action or judicial review. Once a pardon is issued and accepted, it’s a done deal. The individual concerned is legally “forgiven” their crime.
Blanket pardons (e.g., for “any and all crimes that were or may have been committed”) are similarly settled law. Ford did exactly that when he pardoned Nixon.
The legal question I have is this: can a chief executive – either Federal or state – issue himself a pardon for “any and all crimes committed while in office”? To my knowledge, it’s never happened. But it has been publicly discussed more than once during my lifetime.
Any of the lawyers who regularly read, please weigh in.
Category: Legal
looks like he can. I found this (from 2008) on Democrats.com where they were in a tizzy over whether GWB would pardon himself over his “war crimes”
http://www.democrats.com/pardon-faq
As a layman I would argue no in that one cannot rule on one’s self in a court of law and as such cannot make a legal ruling on one’s behalf to his or her benefit. Recusall can and should be made when self-interest is at stake.
sorry about linking to them 🙂
Pro per is self-representation, but I don’t think it includes pardoning oneself. I believe a federal pardon has to come to the perpetrator from someone legally in authority, as Ford did with Tricky Dick.
If this is a question addressing whether or not Bo can be impeached and kicked out, and subsequently “pardon” himself, he’d no longer have authority to do so, would he?
Its a catch 22. The president has the power to pardon anyone convicted in criminal court, but presidents don’t get tried in a regular court. Only Congress has the authority to sit in judgement of the president while he is in office.
This question comes up fairly regularly, it seems! It will be interesting to read what our legal minds opine as they weigh in.
Dave Thul: not so. Impeachment and criminal trial are two separate actions. Impeachment and removal from office does not preclude later criminal trial for crimes leading to impeachment and removal. See US Constitution, Article I, Section 3, last sentence thereof.
There is nothing in the US Code that I know of that would preclude a sitting president from pardoning himself but neither is there an affirmative provision permitting such an act. As Dave Thul pointed out, the pardon would apply to crimes. Article II, Section 2 of the Constitution gives a president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Thus, a president could conceivably pardon himself for a crime, be impeached, and be powerless to affect an adverse impeachment outcome. No doubt it would be a fun time for law students across the land if the circumstance asked about actually arose. The mind boggles.
There is a whole row of empty cells at Thompson Federal Prison. 🙂
Also, I have a gardening shed with an outside padlock.
And then there’s old medieval method: the oubliette.
Don’t have those here, Ex-PH2. The ACLU made sure of that.
Would sometimes be apropos, though.
2-17th AirCav: so, in your opinion Article II, Section 2 of the US Constitution would not be sufficient grant of authority? As I read it, the only restriction that part of the Constitution places on the President’s Pardon authority is that he cannot use it to affect the outcome/aftereffects of impeachment/removal/disqualification from future office. And those are not strictly criminal matters anyway.
Not sharpshooting. This one theoretically could get REALLY interesting. Common sense says “no, he can’t pardon himself for any and all crimes he committed while in office; that would be absurd.” But I also don’t see anything preventing it.
I have no idea on whether he could or couldn’t pardon himself. Though if he tried it would put the seal on the end of what is called the Democratic party.
#12 is correct and for that reason will not be used but there is a get-around that I read:
1) A president could pardon everyone in his administration including the Vice President.
2) He could then resign
3) the Vice President who would then become the succeeding president could return the favor by pardoning the resigning president.
4) An amendment to the Constitution would also have to take this into account.
5) The president could kill two birds with one stone! The succeeding President (ex Vice President) would be entitled to all the benefits afforded to all retired presidents
In the last 4 years I have not seen BO care what the Constitution says. That said I can’t see him getting any of this on him.
There you go, COB6! That’s the scenario which usually is mentioned.
Has the political climate changed enough that this time around it would be politically feasible? We shall see.
Meanwhile, it is pretty hysterical, albeit frustrating, to watch the media squirm as they attempt to figure out just what they are supposed to do with this mess.
Oh, and the thought of saying the words prez and Biden in the same sentance makes me shudder. Arrrrhg! That was terribly painful even in the abstraction!
@13 COB6 – Gerald Ford, who replaced Spiro Agnew as Nixon’s vice president, did pardon Nixon after Nixon was impeached and forced to resign.
COB6
They are stuck and stuck big time. If they attempt what you outlined it would be an admission that it’s all about Obama (which at least to him it always was) and virtually the entire Democrat party will go under the bus (not to mention the MSM would cease existing if they didn’t oppose it). Or they can hope to win the election (it’s gonna be landslide Romney) and keep it buried. No matter what they and their allies do this will hang over them to the point of ruin.
This is just getting dirtier and dirtier.
I’m going to go and rake leaves and spend some time in the sun.
@16: Nixon was never impeached. He resigned prior to that step being taken. He was pardoned by Ford before he ever went to a criminal trial. There are only two presidents who were ever impeached, Andrew Johnson and Bill Clinton. Both were found innocent.
Okay, the pardon process is something we went over quite a bit in one of my classes. It wasn’t law, but it was related (government). In order to issue a pardon, the person receiving it must first be convicted. With that said, the President could not pardon himself unless he is first convicted. With the way our system is “supposed” to work, a conviction would come after an impeachment hearing. So, the President would be out of office when the conviction happens. Thus, he could not pardon himself.
From John Dean, via findlaw.com…
>>While no president has ever pardoned himself, the law supports the president’s authority to do so. Scholarly inquiry into the subject was provoked first by fear that Richard Nixon would pardon himself to escape Watergate; later by thought that George H. W. Bush would do so because of the Iran-Contra grand jury; and most recently by concern about Bill Clinton’s problem of a possible post-Presidency indictment and trial. And while a few scholars have concluded that the president cannot pardon himself, many more believe that he can. <<
This can be found here:
http://writ.news.findlaw.com/dean/20001208.html
Flagwaver: not so, amigo. Ford pardoned Nixon for “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.”
http://www.ford.utexas.edu/library/speeches/740061.htm
Ford did this on 8 September 1974. At that point, Nixon had not even been charged with any Federal crimes – much less tried or convicted. Ford’s pardon made any such charges moot.
Ex-PH2: yes, Ford was Nixon’s VP. But he had been POTUS for nearly a month when he pardoned Nixon.
COB6: the scenario you propose in comment 13 indeed appears absolutely legal, with nothing to stop it other than public opinion and/or political fallout afterwards. However, that wasn’t the scenario I was asking about. I was wondering about the legality of a POTUS (or Governor) issuing themselves a pardon for “all crimes committed or which may have been committed” during their term in office. That’s a different scenario.
The language is open, and we really will not know the answer until somebody tries it.
Impeachment is really a remedy for re-election of someone who committed high crimes and misdemeanors during his first term in office. That is because the process is relatively slow, and it is easy, as we have seen, for an administration to kick off hearings and such until after the election.
All that said, I do believe that if Obama is re-elected, he will be impeached. The Benghazi incident, for all that the investigation will have painful results, does not yet contain information that supports a finding of “high crimes and misdemeanors.” The President’s job is to decide yes or no, and disagreement with the decision is not grounds for impeachment.
This administration is scandal-ridden, and the most well-developed case so far is the “Fast & Furious” investigation. Another possibility is the monetary malfeasance characterized by the bankruptcy of Solyndra and many other “green” shell companies.
Impeachment is expensive and results in turmoil in the country. I’d far rather see BO removed from office through an election.
I could put in my three cents on who will win, but I’m waiting until the last minute.
I will say that I see this election riddled with charges of fraud, conspiracy theories, and manipulation, worse than anything we saw with Bush/Gore. Anything, including voter intimidation and “lost” ballots, may happen and probably will. You have one side that is desperate to win.
You also have elections for the House of Representatives. The Senate is now in a very slim Democrat majority and 33 seats are up for grabs in this election. The House gained a 20-seat majority in the 2010 election. House of Reps districts have been redrawn since then, mostly favoring Republicans, and all 435 seats are up for re-election this year.
To make things simple, you can vote a straight party ballot.
However, no matter what kinds of ridiculous antics the Democrats engage in ahead of the actual election, I believe that the results of the presidential election will be examined and re-examined and not declared for at least two weeks, and possibly not until Thanksgiving. And those results may still not be accepted by the losing party.
Hondo-
since the president can’t be tried by a normal criminal court while in office, he cannot pardon himself. That is the catch 22. He has the power to pardon himself, but only for a court that doesn’t have the power to convict him.
He can certainly be tried in regular court after leaving office, but then he has lost the power to issue pardons.
The you/me scenario COB6 outlines is not that farfetched; if Bengazi is as bad as it seems, Pres Obama could pardon the VP and below on Jan 18th, then resign in the 19th so Biden would have a day as president and then pardon Obama. Nothing would be constitutionally or legally wrong with that.
David Thul: it has already been established that the President has the power to issue pardons for crimes that have not been tried and for which no conviction has been obtained. It that precedent had not been already established, Ford’s pardon of Nixon very publicly and emphatically established that precedent.
Once accepted, a pardon remains valid in perpetuity. Therefore, if a President chose to pardon everyone else in his administration on his last day in office using a blanket pardon of the sort Ford gave to Nixon, those individuals would be permanently immune from punishment for any Federal crimes committed during the period specified. While doing so would IMO be immoral as hell, it would be perfectly legal. The only effective limit would be how fast that POTUS could sign his name.
Indeed, some would say Clinton approached doing that in Jan 2001, when he granted pardons to 140 persons on his last day in office – though many were issued to political supporters vice members of his administration.
In short: it doesn’t matter whether the person is temporarily shielded from prosecution by virtue of holding office. A pardon issued for “any and all crimes committed” during their time in office effectively makes it impossible to punish them for any such crimes – ever. And Ford’s pardon of Nixon established the fact that such a pardon issued to anyone but the POTUS is perfectly legal.
The sole question that is unsettled is whether or not a President (or state governor) can pardon himself/herself for all crimes he personally committed or may have committed while in office. Common sense would say no, but the Constitution does not seem to forbid it.
It boils to down to: what goes around, comes around. Any trial would be considered a kangaroo court, and any punishment would be considered contrived and excessive.
That principle pisses off the purists and ideologues, but all three branches practice it. After all: who would run for POTUS knowing s/he would be given a short show trial before being hung from the neck until dead within hours of a POTUS being sworn in?
Love how it pisses off the goons and bullshit artists on the left.
Would have to agree with you on that, Hondo. Kind of wonder if something could be done by Congress to punish those effected by such. In the extreme even a Constitutional Ammendment to the effect of withholding benefits from those convicted or pardoned of crimes? Not sure how I feel about that, but is it theoretically possible? Even if so, it might be difficult to make it retroactive.
Oh, goody. More fodder for visiting lecturers in Constitutional law.
OWB: I’d guess such an Amendment couldn’t be made retroactive – the Constitution’s prohibition on ex post facto laws would seem to prohibit that.
Preventing the type of scenario I describe in comment 27 doesn’t seem to be possible without removing or severely limiting the pardon authority currently accorded the POTUS. Personally, I’d be somewhat hesitant to support an Amendment doing so. I might be convinced to a change requiring pardons to be issued only for specific crimes, though. The concept of a blanket pardon concerns me; the potential for abuse is high.
But I’d have no problem with a clarification, either via SCOTUS decision or Constitutional Amendment, that specified that a POTUS could not issue himself/herself a pardon. It’s sad that such a clarification could even conceivably be required – but I fear that one day we’ll see exactly that attempted.
Answer:
“The legal question I have is this: can a chief executive – either Federal or state – issue himself a pardon for “any and all crimes committed while in office?”
The answer is no, because presumably you are speaking about the POTUS, and he was never qulaified to be the POTUS, his actions and behavior strongly suggest that he is NOT competant to be POTUS, therefore any self directed pardon, would be an illegal act in and of itself. He could try perhaps …
You see he is screwed …
He swore on the steps of our Capital … and he failed …
And he failed because be sold everyone a bill of goods that he could not produce … in some circles … fraud, con-man, crook, ect …
@31 — Remember that the POTUS flubbed his oath of office in 2009 and it had to be re-administered the next day, indoors. Says a lot about him.
There’s that.
There’s also this: the pension for the president was started because when Harry Truman left office, he didn’t have enough money to drive home from Washington, DC to Joplin, Missouri.
Now it’s just gotten out of hand. These people are all richer than Roosevelt. They don’t need the money or the benefits. I personally think it’s time that was all canceled.
Oh, and the Secret Service guard after leaving office? They aren’t in charge any more. They can live like the rest of us po’ folks do. Keep a gun in the house. Call the cops when there’s a burglar. :PPPPPPPPFT.
Or grab a large cat.
Not everyone has a cat as large as yours. I think the Tour-de-France needs to check that thing for performance enhancers.