Pardons- specifically the abuse of pardons- have been in the news.
– At the state level, Former Kentucky Gov. Matt Bevin, a Republican who narrowly lost his re-election bid last year, issued pardons to hundreds of people, including convicted rapists, murderers and drug offenders before leaving office.
– At the federal level, The U.S. Supreme Court clarified presidential pardon power in an 1866 case (Ex Parte Garland) which stated that the presidential pardon “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”
– Former Trump lawyer Michael Cohen told the FBI that he and Trump attorney Jay Sekulow discussed the concept of the president issuing “pre pardons,” so that no one had to comply with investigations. (The conviction itself would remain on the books after the pardon.)
However, when the Trump lawyers learned that pre-pardons would actually result in people having to cooperate and that the blanket immunity would mean people waiving the right to take the Fifth Amendment against self incrimination.
– A presidential pardon would have been futile for Paul Manafort who would have faced prison under New York state laws, which are beyond the presidential pardon power. The Constitution refers to “offences against the United States,” so presidential pardons are limited to federal offenses only.
– While presidential power to pardon seems almost limitless, the Constitution clearly states that they may not pardon “in cases of impeachment.”
Article 2, section 2 of the Constitution says “[The President] shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
– Nothing in the Constitution prohibits the president from pardoning themselves of federal crimes.
A president who pardons himself would be seen as admitting guilt.
An attempt by a president to self-pardon would set off a constitutional crisis over the fact that it could absolve the president of criminal liability for their official or unofficial acts; even for crimes that were committed before assuming the presidency.
Such a Constitutional crisis would bring about impeachment inquiries.
– Presidential pardons can have political impact. Gerald Ford’s pardon of Richard Nixon almost certainly was the main reason Ford lost the 1976 election for president.
– In what the ACLU called an “utterly shameful use of presidential powers.”, President Trump granted full pardons to military officers who were charged with war crimes.
Will the president use the power of the pardon to place himself above the law? And will the Legislative and Judicial branches of government let him do it?