So recently, President Trump made an odd comment about the presidential pardon.
“The pardons are a very positive thing for a president.
I think you see the way I’m using them.
And yes, I do have an absolute right to pardon myself.
But I'll never have to do it because I didn't do anything wrong."
As bizarre as that may sound, Trump isn’t entirely wrong.
Since taking office, Donald Trump has pardoned five people.
The act of pardoning criminals doesn’t create many political allies.
So presidents usually wait until later in their term to issue pardons.
The past two presidents only began granting pardons late in their second year.
Trump, on the other hand, has already begun to exercise his pardon power.
And with several people close to the president being investigated by the special council, Trump’s
pardon power might come in handy.
Some argue that by issuing pardons this early in his presidency, Trump is sending signal
that he is willing to bail out any of his political allies that might be targeted in the future
by the Russian investigation.
So what does the US Constitution have to say about the president’s power to pardon?
The Constitution provides specifically for the president's pardon power.
It says that the president may pardon individual offenses —
federal offenses, not necessarily state offenses
and he cannot use the pardon power to avoid impeachment.
But as with most powers bestowed by the US Constitution, the presidential pardon comes
with checks and balances.
One of the principles underlying a separation of powers is that no one should be a judge
in his own cause.
So we have a system with a separation of powers and that separation of powers is one of checks
and balances.
The first possible check to Trump’s pardoning power could come through the judicial branch.
When presidents take office, they’re bound by the Constitution to take
the “oath of office."
And in that oath, they make a promise to:
“Faithfully execute the office of President of the United States."
That language of faithful execution — the idea is that this language migrated from private
law documents that limited trustees,
limited corporate executives, that they couldn't embezzle
they couldn't self deal, they couldn't use their powers to benefit themselves to the
detriment of others.
A future prosecutor could go into court,
Trump would walk in and say look I signed the pardon, with the papers then say look, look at my
signature, the way he always does. And the judge says sorry that piece of paper is not legally
valid, because it violated the part of the Constitution that requires faithful execution.
The next check to Trump’s pardoning power could come from the legislative branch
— from Congress.
There’s a clause in the Constitution that basically says Congress has the power
to make laws to ensure that the Constitution is followed by all branches of the government.
So the argument is that if Congress has the ability to regulate the means they cannot
take away the pardon power, but they may be able if it's necessary and proper to limit
for example, corrupt pardons or illegal pardons that would otherwise be unconstitutional, for example.
It's possible, let's say the president pardoned everyone,
who was white because for racist reasons. For example, that would clearly violate the Constitution.
There's almost no way to get that into court.
The only response here can actually come from Congress.
The most obvious check to Trump’s pardoning power, though, is one that Trump’s own legal
team has publicly recognized:
"The president of the United States pardoning himself would just be unthinkable
and it would lead to probably, an immediate impeachment.
Trump can pardon whoever he wants — even if that means shielding his political allies
from the Mueller investigation and even, plausibly, himself.
But he would almost certainly face impeachment hearings in Congress for doing so.
And as the Constitution makes clear — that pardoning power cannot be used to shield from
impeachment.
So in some ways voters themselves serve as a powerful check against the president's pardoning power.
But of course this all depends on Congress’s willingness to move forward with impeachment,
should the need arise.
Elections are a crucial check because all of the departments are the people's servants, ultimately.
I think it's a tremendous political mistake myself for him to have urged that he has the
absolute power because no one in America thinks we have a monarch
whether you love Donald Trump or not.