The pardoning crisis

President Trump’s recent statement about his “complete” pardon power is the harbinger of a constitutional crisis the likes of which this country has never endured. Can Trump issue a pardon to his family members or staffers for any crimes they may have committed against the United States in their efforts to secure Trump’s election to the Presidency? Certainly, he has that power.

But can be pardon himself? Surely, it would fundamentally negate the basic tenet of our system of justice that “no man is above the law”.

The law is not just the enumeration and codifying of those behaviors and acts that we believe are detrimental to a functioning society, but the processes by which those crimes are investigated and charges formalized. The law is also the system of procedures and practices by which those charges are heard, evidence considered, and guilt or innocence adjudicated. The power to pardon is a part of that process. Mercy is at the heart of a gubernatorial or presidential power to “stay” an execution, or otherwise commutate a sentence of punishment, and stands in support of our innate capacity for forgiveness.

But if all of these elements are true, then any individual’s right to “self-adjudicate” simply cannot be true, lest it render the entirety of our system of American Jurisprudence irrelevant. We are judged by our peers. Our guilt or innocent is determined by the judicial bodies within whose authority we have agreed to abide by and submit to at the appropriate local, state, or federal level. But were we allowed to simply determine our own innocence or guilt, and punish ourselves as we see fit, such an individual ability would dissolve the underpinnings of society and render all law and order, essential to a functioning society, wholly and immediately irrelevant.

The unique power of the president to pardon is no different. Were he to have that authority to pardon himself, then the president would be the only person in the entire nation who is completely immune to the confines of the law. Our Founding Fathers’ fundamental aversion to monarchical authoritarianism assures us that such a presidential ability was never envisioned or intended when they granted the pardon power to the office of the presidency.

If the president can pardon himself, rendering himself immune to prosecution, then he may commit the most heinous of crimes at will as President, including murder, and simply pardon himself after the act, remaining free from prosecution for all time.

It is certain that the U.S. Supreme Court, if tasked with the deliberation, would rule against Trump’s notion of the power to “self-pardon”, which he asserts is his own. But the process by which we get to that point, which seems more likely with each passing day, would present the country with a constitutional crisis beyond anything witnessed before.

Michael Luna


Submitted by Virtual Newsroom