President Trump, in his zeal to complete a border wall before the next election, has reportedly told his staff to disregard the law—in this specific instance, to take private property without due process—and not worry about the consequences.
Latest in pardon power
In the runup to Memorial Day, numerous writers denounced President Trump’s purported plans to grant clemency to several U.S. service members accused or convicted of war-zone offenses.
On May 18, the New York Times reported that President Trump has set in motion a process for obtaining advice from the Department of Justice about how to proceed in issuing pardons to several military service members charged with or convicted of war crimes. Specifically, the White House reportedly contacted the Office of the Pardon Attorney, which in turn contacted the relevant military branches for information about the cases—presumably to prepare a recommendation for or against pardons.
There appears to be some confusion surrounding the question of whether a president can pardon himself. There are many judgments to be drawn from the familiar forms of legal argument—history, text, structure, prudence, doctrine and ethos—all of which cohere around the conclusion that such a pardon is not constitutionally permissible, a conclusion also reached by the Office of Legal Counsel (OLC). These arguments are discussed in more detail in “Impeachment: A Handbook,” by Charles L. Black, Jr. and Philip Bobbitt, forthcoming from Yale Press in September.
“When the whole thing is over, things might get cleaned up with some presidential pardons.” Thus did Trump spokesman Rudy Giuliani suggest—in response to the recent jailing of former Trump campaign chairman Paul Manafort for witness tampering while out on bail and reports that Michael Cohen might be willing to cooperate with Special Counsel Robert Mueller's investigation—that the president could wave his pardon wand to make all his legal troubles disappear.
President Trump has been merciful lately. In April, he pardoned Scooter Libby, the former aide to Vice President Dick Cheney who was convicted of perjury, obstruction of justice, and making false statements in the investigation into the leaking of a CIA agent’s identity.
There is no obvious right answer on the validity of self-pardons, and if Trump becomes the first president to pardon himself, a court is unlikely to provide an answer.
Trump’s exercise of the pardon power is another example of how he is degrading settled norms of behavior and governance.
Editor's note: This piece has been updated in light of events.
President Trump’s pardon of Scooter Libby, chief of Staff to former Vice President Dick Cheney, came unexpectedly, and prompts the question: Why this, and why now?
On October 4, Judge Susan Bolton will hold a hearing to consider former Sheriff Joe Arpaio’s request that she vacate his conviction for criminal contempt now that President Trump has issued what many have described as a regrettable but valid pardon. This choice is to Judge Bolton’s credit: Instead of simply vacating his conviction, she’s wise to grapple with this unusual and perhaps unprecedented pardon.