Trump – Self-Pardon Unlikely and Ineffective; Constitutional Crisis Possible

Almost lost amid speculation about a possible pardon of Hillary Clinton by President Barack Obama, or by Donald Trump after his inauguration, and a possible Trump pardon of WikiLeaks publisher Julian Assange (for his helpful leaks), is the suggestion that Trump might even consider pardoning himself to deal with a variety of current and looming legal threats.

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Trump

By Krassotkin (derivative), Gage Skidmore (Donald Trump), Gage Skidmore (Hillary Clinton) [CC BY-SA 3.0], via Wikimedia Commons

Trump is already named in over 70 civil law suits, and his enemies might seek to burden him with many more; several prominent prognosticators are predicting that he is likely to be impeached; and at least one law professor has outlined possible criminal charges which might bedevil him in office, and even serve as a basis for impeachment. But it is still very unlikely that Trump would seek to pardon himself since any such pardon would offer little effective legal protection, and could entail considerable political risk.

While constitutional experts seem to agree that Trump could legally pardon himself for any and all crimes which he may have committed beforehand, that would afford him only very limited protection, says public interest law professor John Banzhaf, who helped pressure then-president Nixon to resign by using legal action to help have two special prosecutors appointed. Nixon later received a “full, free, and absolute pardon” “for all offenses against the United States,” without naming specific offenses, from Gerald Ford.

But a presidential pardon would shield Trump from criminal actions under only federal (but not state) law, and would not protect him in any way from impeachment, says Banzhaf.

Trump reportedly already faces more than 70 lawsuits, but all of them are civil legal actions which would not be affected by any federal pardons.

Some commentators have suggested that, based upon what is now known, he could conceivably face federal criminal charges for actions taken before assuming office including allegedly violating immigration laws, failing to properly pay workers, and for breaking tax laws, among others.

Indeed, legal experts at the University of Utah has unveiled a 23-page plan to bring criminal charges against Trump based upon what is already known about his involvement with Trump University.

They suggest that he could be criminally charged, and ultimately also impeached, for fraud and racketeering based upon already-available evidence of criminal conduct regarding his university.

In addition, many who strongly oppose him, including even some Republicans, might be tempted to seek out additional grounds and legal theories under which he might be criminally charged, if for no other reason than to embarrass him, and distract him from moving ahead in certain areas.

But the Justice Department and many constitutional scholars believe that criminal charges cannot be brought against a president while he is still in office, and that the only remedy for a president suspected of having committed a crime is impeachment.

It would also seem to be extraordinarily unlikely that a Justice Department under an Attorney General nominated by Trump, and who serves at the president’s pleasure and therefore can be dismissed if he displeases the president, would even consider bringing any such criminal charges.

However, as one contrary example, then-president Richard Nixon could have been faced with criminal charges by a special prosecutor, and criminal charges were in fact brought against then-vice-president Spiro Agnew, for whom the remedy of impeachment was also available.

Turning now to possible impeachment, Professor Allan Lichtman, who reportedly was one of the few prominent prognosticators to predict Trump’s victory, has also predicted that “Trump would eventually be impeached by a Republican Congress that would prefer a President Mike Pence – someone whom establishment Republicans know and trust. . . . I’m quite certain Trump will give someone grounds for impeachment, either by doing something that endangers national security or because it helps his pocketbook.”

Likewise, prominent columnist David Brooks has predicted that “the guy [Trump] will probably resign or be impeached within a year.” Also, the Inquisitr reports that: “efforts to impeach Donald Trump are already underway, with a number of legal experts and angry voters looking for potential ways to unseat the deeply unpopular Republican as soon as he is sworn in as president.”

But, although the issue is far from clear, there is precedent that a sitting president can be impeached – and removed from office by impeachment – only for wrongdoing committed while in office.

In 1873, while considering the impeachment of Vice President Schuyler Colfax, the House Judiciary Committee concluded that impeachment “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties as such, whatever may have been their effect upon him as a man, for impeachment touches the office only and qualifications for the office, and not the man himself.” If this precedent still controls and is followed, Trump could not be impeached, and possibly removed from office, for anything he may have done in the past.

On the other hand, and much more recently, federal Judge Thomas Porteous was removed from the bench for – among other things – attempting to conceal, during his confirmation process, various prior wrongful acts. So it could be argued that this more modern precedent would permit President Trump to be impeached, and ultimately removed from office, for the crimes he has allegedly already committed.

This just might create a constitutional crisis. If the House votes to impeach Trump for his alleged prior crimes, and the Senate upholds the impeachment and demands that he step down, Trump can argue that the process is invalid under the 1873 precedent, and for other constitutional reasons.

In such a situation, it is not at all clear that, because of concerns about legal standing and other legal problems, federal courts, including even the U.S. Supreme Court, could consider – much less rule – on the situation, nor that a combative President Trump would yield office even in the face of any such ruling.

So, while a self pardon would not shield Trump from actual impeachment proceedings, nor from civil legal actions or state criminal proceedings, it might help protect him from prosecutions for any federal crimes his enemies might claim he has already committed, says Banzhaf.