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https://jonathanturley.org/2020/12/07/yes-trump-can-pardon-himself-but-he-should-not-do-so/Yes, Trump Can Pardon Himself But He Should Not Do So

Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not 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 statutes to constitutional provisions, legal experts routinely and unfailingly conclude that Trump or his family can be prosecuted or impeached for an endless array of misdeeds. Even theories denied by the Supreme Court are seen as valid when used against Trump. Now the same certainty has been declared on whether Trump can grant himself a pardon. One of the longest standing debates in constitutional law is dismissed as ill-informed by some of the same experts.

His role as a catalyst for clarity was apparent in an interview by Harvard professor Laurence Tribe. After host Lawrence O’Donnell said he believed a president could give himself a pardon, Tribe proclaimed such a view is “incoherent and incompatible” as a constitutional matter. The declaration likely surprised few on MSNBC. Tribe has been an outspoken critic of Trump, whom he has denounced as a “terrorist,” and he has supported a wide array of criminal and constitutional claims against him. These views are popular as are 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 have maintained that a president can grant himself a pardon. I held that position before Trump took office. I also believe a president can be indicted in office. The reason is the same: The Constitution prohibits neither a self-pardon nor a presidential indictment. This is not the first time that Tribe and I have disagreed. Two decades ago, we testified together at the impeachment hearing of President Clinton.

At that time, Tribe was far more restrictive in his legal and constitutional interpretations, appointed his wife to head a major federal commission on health care but pardoned his own half-brother. The Framers did not bar such forms of self-dealing any more than they barred self-pardons.

This is why Trump can pardon himself, and why he should not do so. Just as I denounced Clinton for abusing the pardon powers, I believe such a step by Trump would be an even greater abuse. In other words, it would be as constitutional as it would be wrong.