Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
President Donald Trump has used his pardon power sparingly, but overwhelmingly to benefit his friends and to protect his own interests. Former George W. Bush Administration official Jack Goldsmith recently analyzed Trump’s pardons for Lawfare and concluded that “no president in American history comes close to matching Trump’s systematically self-serving use of the pardon power.”
Indeed, as Trump nears the end of his first (and perhaps only) term in office, he has wielded the pardon power more boldly than ever. Even by his own established standards of cronyism, Trump broke new ground last week by commuting the sentence of his longtime political adviser Roger Stone – for crimes that Stone committed to protect Trump.
Now, there’s only one remaining line that Trump has not yet crossed. Brace yourself because it might well happen soon: the first-ever presidential self-pardon.
Mechanically, Trump would have to issue such a pardon while he still holds office. And the pardon would need to give him coverage for anything he has done in the past. It would be as if Richard Nixon – rather than resigning and receiving a blanket pardon from his successor, Gerald Ford – simply tried to pardon himself on his way out of the White House.
Trump has ample incentive to preemptively save his own hide with a pardon (or, at least, to try). Although current Justice Department policy counsels against indicting a sitting president, the memo setting forth the policy notes repeatedly that a president can be indicted after leaving office. Special Counsel Robert Mueller pointedly stated in his report and Congressional testimony that a president can be indicted after leaving office.
Trump faces potential post-presidency exposure on several fronts. Mueller laid out facts potentially supporting obstruction of justice charges; over 1,000 former federal prosecutors (including me) signed a letter concluding that Mueller’s evidence would amply support criminal charges against anyone other than a sitting president. (Attorney General William Barr has implied that based on Mueller’s report, he believes Trump did not commit obstruction, and Trump has repeatedly tweeted “No Obstruction”).
Further, Justice Department prosecutors in the Southern District of New York charged and convicted Trump’s former attorney Michael Cohen of campaign finance crimes relating to payments of hush money to two women who allegedly had affairs with Trump; the SDNY declared in a court filing that Cohen “acted in coordination with and at the direction of” Trump (identified, transparently, as “Individual-1”). The Manhattan District Attorney continues to investigate Trump’s involvement in the payoffs, just last week winning a Supreme Court ruling rejecting Trump’s claim to categorical immunity from a subpoena while in office (although a presidential pardon would not necessarily foreclose state-level charges). Trump’s story has evolved, but he has at times denied knowing about the payments.
Would a presidential self-pardon be lawful? The short answer is we don’t know for sure, because no president has ever tried it. The Constitution itself does not specify either way and there is no statute or case law on the issue. But you can already see the battle lines forming.
Trump certainly believes he can pardon himself. He tweeted in June 2018, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” Indeed, some legal scholars believe that the President can issue a self-pardon, pointing to the text of the Constitution itself – which places no such limit on the pardon power. Article II states plainly that the president “shall have power to grant reprieves and pardons for offenses against the United States.” If the Framers meant that a president cannot pardon himself, the argument goes, they could have and would have said so.
The opposing view is that a presidential self-pardon would be unconstitutional and dangerous – or, at a minimum, that even if a president did try to pardon himself, it would lead to immediate impeachment. The Justice Department studied the issue during the Watergate scandal and concluded that “[u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” There is historical evidence that the framers of the Constitution did not intend to permit self-pardons; James Madison, for example, argued that “[i]f the President be connected, in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the House of Representatives can impeach him.” Even Trump’s own personal counsel, Rudy Giuliani, acknowledged that a self-pardon would be “unthinkable” and “would lead to probably an immediate impeachment.”
But there’s the catch. If Trump loses the election in November, he likely would recognize that impeachment during his remaining months in office is exceedingly unlikely as a practical matter. Why would the House impeach a president on his way out the door and why would the Republican-controlled Senate vote to convict? And if Trump issues a self-pardon on his last day in office, there will be no time for anybody to do anything about it.
That’s not to say a self-pardon ultimately would stand. But it would take a series of events to knock it down. A prosecutor first would have to indict Trump, notwithstanding the self-pardon. Then the issue would be litigated in the courts, likely up to the Supreme Court. Given the weight of the constitutional and historical authority (including the Justice Department opinion and the stated intent of the Framers), a self-pardon likely would not stand; but there’s almost no downside to Trump in at least giving it a shot and seeing if it sticks. A meager shield is better than no shield at all, at least to somebody who cares more about self-protection than rule of law.
With the Stone commutation, Trump already has crossed a line by using his constitutional power to help a political ally convicted of a crime directly relating to the President himself. Trump also might try to pardon members of his own family or other personal associates. While such a move would smack of distasteful favoritism and self-dealing, it almost certainly would be Constitutional and it would not be unprecedented; former President Bill Clinton, on his last day in office, pardoned his own half-brother.
We don’t yet know, of course, whether Trump will have the temerity to try to pardon himself. And if he does, it is unclear whether the gambit would succeed. But here’s one thing we can know with certainty: if Trump does try to pardon himself, he would leave a permanent stain on his own historical legacy.
Now, your questions:
Chris (Nebraska): In the case involving the Manhattan District Attorney’s subpoena for President Trump’s tax returns, what does it mean that the case has been sent down to lower courts for further action? Couldn’t the Supreme Court have decided the case once and for all?
In its decision on the subpoena from the Manhattan District Attorney seeking Trump’s records from a financial firm, the Supreme Court ruled narrowly on the unique argument that Trump is temporarily immune and need not comply with a grand jury subpoena while in office as President. The Court, by a 7-2 vote, sharply rejected Trump’s argument, holding that “In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”
Now that the Court has disposed of Trump’s presidential immunity claim, however, Trump still can contest the subpoena, just as any person can contest any subpoena in the normal course of criminal proceedings. For example, litigants sometimes seek to “quash” (meaning, essentially, block) a subpoena by claiming it is irrelevant to the case, is overly broad or violates a legal privilege such as attorney-client privilege. In my experience, it is exceptionally difficult for a litigant to succeed on these claims. In 14 years as a prosecutor, I never had a subpoena quashed by a court, and only saw it happen to other prosecutors on very rare occasions.
So, while Trump still can raise the normal objections that any litigant could raise, he is very unlikely to succeed in the lower courts in blocking the Manhattan DA’s subpoena. But it will take time to litigate the issue, including appeals – likely beyond the election in November.
Rick (New York): Does our system provide way to challenge or reverse a pardon?
Probably not. The Constitutional pardon power is exceptionally broad: the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Aside from the “except in cases of impeachment” clause, the Constitution places no explicit limit or qualification on the President’s pardon power.
There is no precedent for a court or Congress to overrule or reverse a presidential pardon. At most, a president might, in certain narrow circumstances, be able to reverse his own pardon before it becomes official. In 2008, then-President George W. Bush pardoned convicted felon Isaac Toussie but then, upon learning that Toussie’s father had made large donations to Republican political groups, rescinded the pardon the very next day. Administration officials claimed the pardon had not yet been finalized because Toussie had not yet received formal notice of the pardon.
There is only limited and distant precedent for a president to revoke a prior president’s pardon. Former President Ulysses S. Grant revoked several pardons issued by his predecessor, in some instances claiming (like Bush) the pardons were not final because no formal notice had been made to the recipients. In the 140-plus years since Grant, no President has even attempted to rescind a pardon issued by a prior President.
Mike (California): Is the Michael Flynn case over, or is there some way the case could still continue?
The Michael Flynn case is still not over yet. You’ll recall that Flynn had pleaded guilty to lying to the FBI about his communications with a Russian diplomat. In June, a three-judge panel (split by a two-to-one vote) of the Court of Appeals for the District of Columbia Circuit ordered Judge Emmet Sullivan to dismiss the Flynn case, as requested by Attorney General William Barr’s Justice Department. The court of appeals found that the decision to prosecute or dismiss a case sits with the Executive Branch (through the Justice Department) and not with the judiciary.
Judge Sullivan has, however, sought re-hearing by the court of appeals sitting “en banc” (meaning the entire court of appeals, consisting of 11 judges). The court of appeals rarely grants such review, but it has put the Flynn proceedings on hold while it considers Sullivan’s request – indicating at least some potential interest in granting en banc review. If the court does grant the request, then it will reconsider the original order dismissing the Flynn case. If not, then the case is over, unless Sullivan seeks, and the Supreme Court grants, final review.
Three questions to watch this week:
1.Now that Ghislaine Maxwell has been denied bail pending trial, will she try to cooperate with SDNY prosecutors?
2.Will the Court of Appeals for the DC Circuit grant “en banc” review of a panel’s earlier decision ordering the district court to dismiss the Michael Flynn case?
3.How quickly will the Manhattan District Attorney, and the courts, move to decide the remaining issues on the subpoena for Trump’s tax returns?