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Friday, August 11, 2017

The Process for Challenging a Presidential Self-Pardon

The ongoing investigations of possible collusion between the Trump campaign and Russia have raised all sorts of interesting and difficult legal questions. I've tried my best to read what lawyers and legal scholars are saying who are engaged with these questions, and I've learned a lot from following their debates. Family and friends sometimes ask me some of these questions. While there are a few on which I can at least offer an informed opinion, for most of these questions there are people much better qualified to answer than me (and I agree with Carissa about humility, civility, and uncertainty in offering these opinions).

I was asked one such question the other day by a friend, so I'm here to ask the same question to the many readers and bloggers of PrawfsBlawg who are better qualified to answer than me. Assume a president committed a federal crime and pardoned himself. Who has standing to challenge that pardon, and how would they go about bringing a claim? I guess a federal prosecutor could just bring charges against the president, and leave it up to the judge to decide the constitutionality of the self-pardon. Even if that's right, it just raises another frequently-asked question nowadays about whether a sitting president can or should be indicted, particularly for something like obstruction of justice. If he can't or won't be indicted, then I'm not sure that there is a process to challenge the self-pardon. I've tried to follow the debates on these kinds of issues on blogs and Twitter, but I don't think I've seen this question discussed (and sorry if it has and I've just missed it).

Posted by Rhett Larson on August 11, 2017 at 10:00 PM | Permalink


C.E. Petit raises an interesting hypo, if one less hypothetical since it would apply to any number of presidential pardons of the normal sort.

I would reference Nixon v. Fitzgerald, where the Supreme Court by a narrow vote held there was presidential immunity for official acts in a civil suit arising from alleged unlawful action. The text of Ford's pardon appears to me universal in regard to criminal actions there but that alone does not appear to have settled the question.

Like OJ's "not guilty" vote, I don't think a pardon would be an "absolute cut-off of all legal consequences." But, "criminal" might have a wider reach than a prosecution. See, e.g., sexual offender registries.

Posted by: Joe | Aug 12, 2017 1:28:00 PM

I don't see why any court could or would want to touch the question with a ten foot pole on an advisory ('declaratory') basis. A pardon for unprosecuted conduct (as opposed to a post-conviction pardon) doesn't seem to have any collateral effects, it just bars indictment. Given that, first there would need to be an indictment. Without an indictment the question of whether a pardon was valid is not ripe.

If the President were somehow indicted while still in office and after a pardon, it'd be an interesting question which would be addressed first. Since I'm of the opinion that a sitting president isn't subject to indictment, I'd probably address that one first and then say that I don't need to decide the self pardon issue.

The most likely scenario, though still unlikely in my opinion, is a self pardon while in office and prosecution after leaving office. In that case the issue would be unavoidable.

Posted by: brad | Aug 12, 2017 12:30:41 PM

I can think hypothetically of at least a couple of pathways, but whether they're actually useful depends a lot on facts... and, more to the point, on having an ascertainable victim.

(1) The OJ Simpson/Goldman family method: Sue him civilly if he pardons himself criminally. I'm willing to be convinced that a "pardon" extends beyond criminal liability, but I haven't seen a convincing argument yet.

(2) Use of a victim-relief statute of some kind that does not require a criminal conviction as a prerequisite. By analogy, an art-seized-by-Nazis type system might provide some relief... if the statute applies, if the fact pattern fits, if the chain of causation is in place.

So what I think I'm questioning, more than anything, is the presumption that "pardon" means "absolute cut-off of all legal consequences."

Posted by: C.E. Petit | Aug 12, 2017 12:02:05 PM

A self-pardon to me would be grounds for impeachment* but if he actually did it, I'm not holding my breath with the current Congress.

The whole thing is a thought experiment (usual comment regarding the times) and net unsure how much it would matter. The usual idea is Trump cannot be prosecuted while in office. I'm unsure if that is true absolutely [even in regard to state prosecutions; plus it's possible someone might waive immunity, such as a President who commits a minor crime and agrees to a minor penalty to show penance] but it is the likely result. An independent prosecutor type would likely not try it.

And, prosecuting after the person leaves office also is somewhat unlikely, especially if the person resigns or was removed. Some found Ford pardoning Nixon wrong, but personally, unsure if prosecution after he resigned (surely he didn't simply "get away with it") was worth the candle, especially since there were many prosecution of his team. If that occurred for Trump, would the next President really want to prosecute him personally for let's say conspiracy of some sort?

In the future, it might be true that some president might wish to do that. I am surprised, btw, this never came up -- did no governor try to self-pardon? Anyway, the only time it is likely to arise is for a very serious crime. And, not just the controversial sort of involvement with torture of the Bush Administration. Something everyone basically agrees is a crime. On the level of President, I'm thinking murder, rape or the like. Not thinking even something akin bribery might be enough, though it has been for governors. And, of course, if the person is liable for state crimes, a self-pardon might not be enough.

So, the whole thing requires a bunch of things to occur, so it is pretty academic. If I may use that word here. The process to me would be an attempt to prosecute after the person left office. The most likely possibility there is that being labeled a criminal would lead to some penalty (loss of a law license, use of firearms etc.) that would be deemed worth the effort. Not only actual prison time or the like.


* In the current context. As a matter of discretion, I doubt it would always be sensible to impeach if a self-pardon occurs. The effort and results of impeachment and possible removal is great. It should not be used in many cases even if the executive involved did something that technically warrants it. For instance, let's say someone self-pardons after breaking someone's nose in a bar fight. I don't think we would necessarily say such a person should be removed from office.

Posted by: Joe | Aug 12, 2017 11:37:04 AM

Howard Wasserman ,

My example , demonstrates , not supremacy of experts or systems , but , the supremacy of rule of law . Rule of law , suggests , that no one is above the law !! No person , no authority , no official , even not the president !! if somebody is exempted , then it is by law , for appropriate , constitutional purposes .

Reaching the court , is good and right !! Yet ,before it , if application of such , for ordinary person , can't land all of a sudden , on the desk of the president , and being pardoned just like that without appropriate discretion , surly not his " selfie " one of the president himself . For what is the alternative : gathering press conference , and pardoning himself , without any consultation of justice department ?? This is really hardly a joke with all due respect !!


Posted by: El roam | Aug 12, 2017 11:06:27 AM

This is an interesting example of how departmentalism often falls to judicial supremacy because at some point, on many things, the judiciary gets the last word. If the President believes he has the constitutional power to self-pardon, he can do it. If the next President or DOJ disagrees, they can initiate a prosecution, at which Trump asserts the self-pardon as a defense. The courts then get the last word on constitutionality.

Posted by: Howard Wasserman | Aug 12, 2017 10:34:52 AM

Thanks for the post , without even reaching essential legal philosophical issues , in pardoning himself ( And there is no need even , because he can't simply ) one should observe it , from procedural preliminary aspect :

The president , has no legal expertise and power as such ( generally speaking ) . The constitution, grants the possibility of pardoning , only for federal crimes , not state crimes . In order for such application for pardon , to reach the desk of the president , one must go through justice department , and why ?? This is because , the constitution , has granted actually , power to legal experts , and only to them , to decide , preliminarily , procedurally , who is entitled for pardon ( Example : Federal offence Vs . state offence indeed ) . The president , can't do it !! Only a legal expert can decide and exercise discretion in this regard . So , he will have to go , through justice department first , otherwise , it would be illegal prima facie . And briefly : That the very application for pardon , is legally mature , and correct prima facie , and ready for the decision of the president .

Now , I don't think , that there is a sane legal expert , who would decide and act like Rubber stamp , that the president , can automatically pardon himself , and shall blindly authorize it , or grant it the : green light , or go ahead Mr president .

Simply as that , before reaching the essential at all …

Justice department , applications and alike :



Posted by: El roam | Aug 12, 2017 7:32:16 AM

This is the best discussion I have seen of the issue.

Posted by: Orin Kerr | Aug 11, 2017 10:35:17 PM

Uninteresting logistical point: a prosecutor could wait to prosecute the self-pardoned President until after he leaves office (and a self-pardon might speed that departure up, see below).

If the prosecutor didn't wait, it strikes me that, even if a court might find that you can't indict a sitting President, such a court may well decide the validity of the self-pardon first, as it seems like a potentially easier question than whether a sitting President can be prosecuted. At least there's something to latch onto with the pardon, whereas the other question is just a matter of structural inference and pragmatic argument one way or another, as far as I can tell. While a court couldn't hold a trial or substantial pre-trial proceedings without grappling with immunity first, I don't see why it couldn't entertain the question of the self-pardon first, especially if it only does so first in the sense that it addresses it first in an opinion on a motion to dismiss the indictment that covers both questions. Immunity's immunity, but it's not jurisdictional.

Other than that, like you I can't see how the legality of a self-pardon would be tested. I think a self-pardon might very well lead to impeachment proceedings, and that the political/legal judgment on self-pardons that emerged from those proceedings could create a non-binding legal norm on the matter that subsequent Presidents would likely respect.

Posted by: Asher Steinberg | Aug 11, 2017 10:22:19 PM

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