Below is my column in the hill on the presidential pardon controversy. Many scholars have long voiced the view that a president can show self-forgiveness. Judge Richard Posner discussed the matter in a commentary and also concluded that such a pardon could occur. Posner stated: “From the breadth of the constitutional language it was generally inferred that the president can actually forgive himself.” This has been a longstanding debate and an honest and interesting debate on the subject. For some of us there is a difference between condemning such self-forgiveness as self-negotiation and declaring that the Constitution clearly forbids such actions by the President. That doesn’t change because the subject of the analysis is now President Donald Trump.
Here is the column:
It seems the subject of Donald Trump, like necessity, is the mother of invention, at least when it comes to legal analysis. From bribery laws to constitutional law, legal experts routinely and consistently conclude that Trump or his family can be prosecuted or charged for an endless array of misdeeds. Even Theories disputed by the Supreme Court are deemed valid if used against Trump. Now the same certainty has been declared as to whether Trump can apologize to himself. One of the longest-running constitutional debates is dismissed as ill-informed by some of the same experts.
His role as a catalyst for clarity was made clear in an interview with Harvard Professor Laurence Tribe. After host Lawrence O’Donnell said he believed a president could apologize, Tribe said such a view was “incoherent and inconsistent” as a constitutional matter. The explanation likely surprised few on MSNBC. Tribe has been an outspoken critic of Trump, whom he denounced as a “terrorist,” and has supported a wide variety of criminal and constitutional claims against him. These views are as popular as Tribe’s increasingly personal diatribes, including vulgar attacks on Republican leaders and even a false attack on Attorney William Barr for his Catholic faith.
For the record, I claimed that a president can apologize. I held this position before Trump took office. I also believe that a President in office can be indicted. The reason is the same: the constitution does not prohibit self-pardon or indictment from the president. This isn’t the first time Tribe and I have disagreed. Two decades ago we testified together in President Clinton’s impeachment trial.
At the time, Tribe was far more restrictive in its legal and constitutional interpretations, stating that it was not a criminal offense to be under oath in the Clinton case. While a federal court and Democrats agreed that Clinton knowingly committed perjury, Tribe insisted that under certain circumstances a president could perjury and not be charged. In this way, a president can commit a crime for which thousands have been imprisoned, including those prosecuted by his own administration. However, he should not be removed from office for the same act.
I have argued that perjury is a “great crime and misdemeanor” regardless of the subject. Conversely, in Trump’s impeachment, I testified that the problem was far more difficult due to the lack of such a blatant offense as perjury. While I testified that Trump could face two out of six proposed articles – the two ultimately passed by Parliament – I felt that the Judiciary Committee had failed to keep a record of such impeachment and was moving ahead of schedule.
People in good faith may disagree on such matters, including pardons. The language itself is clear. Article II, Section 2 of the Constitution defines pardon so that a president “may grant reprieve and pardon for crimes against the United States except in cases of impeachment”. There is no language that indicates who can or cannot be pardoned. The president is only given authority to excuse anyone for a federal crime. Many courts would likely dismiss challenges to such a pardon as simply unjustifiable. Indeed, it is hardly conceivable that a litigant, if no actual federal prosecutor addresses the problem, would advocate such a challenge according to the applicable regulations.
Tribe insists that the clarity and coherence be reflected in a later provision on how a president should “ensure that the law is faithfully carried out”. Tribal notes: “It doesn’t say“ except the criminal laws. ”It doesn’t say“ unless he chooses to break the criminal law. ”The problem, however, is that those provisions have an inherent conflict: all pardons would mean that to anyone a president negates the effectiveness of criminal law. That is the point of pardon. This includes preventive pardons before an actual indictment like Richard Nixon’s. While Tribe says that self-pardons are especially bad, any pardon would be contrary to duty for anyone, ” see to it that the laws are faithfully carried out. ”The fact of the matter is also that the pardon itself is part of United States law.
Tribe insisted, as in the past, that the Framer would never have assumed such power from the President because even George III did not have the power to forgive himself. It is a curious argument since the King of England was protected by an absolute rule of immunity: “The King cannot go wrong.” In a system where he could not be charged with a crime, a king would not need to be pardoned. It is certainly true that Magna Carta tried to limit the king’s powers. However, it focused on the recognition of individual rights and the principles of due process. Kings continued to rule with extensive personal privileges and immunities. Indeed, for much of history, kings have been deposed in a deadly, non-legal sense. For example, Charles I faced a problem of revolution, not law enforcement, and the ultimate loss of his head was not for lack of pardon.
The tribe’s reasoning then switched from historical to sensational. He noted that Trump once said he could shoot people on Fifth Avenue and get away with it. Forgiveness, Tribe emphasized, “would literally make that come true.” No, it wouldn’t make it true, literally or figuratively. Murder remains a state crime that is in no way restricted by the federal pardon. Trump could apologize for all crimes – but only for those that fall under federal criminal law. He could still be prosecuted under state law for that Fifth Avenue corpse.
The stronger argument against presidential self-forgiveness is not the textual argument put forward by Tribe, but simply that the Constitution should be read to contain a principle against self-trafficking. The presidents, however, regularly engage in all forms of proprietary trading, from nepotism to favoritism to cronyism, with no indication of constitutional difficulties. Bill Clinton not only appointed his wife to head a major federal health care commission, but also pardoned his own half-brother. The Framers did not rule out such forms of self-trading any more than they prohibited self-forgiveness.
This is why Trump can forgive himself and why he shouldn’t. Just when I denounced Clinton for abusing the Pardons, I believe that such a move by Trump would be an even greater abuse. In other words, it would be constitutional as well as wrong.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.