The presidential power to pardon anyone in America baffles me. That power exists elsewhere in various versions. That baffles me equally too.
Article II, Section 2 of the U.S. Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Before I dwell on it, a small quibble. The section’s language uses “he” to refer to the president. Is that used as an umbrella term for humans? Or, does it implicitly rule out the possibility of a woman ever becoming president? In either case, it is disturbing that “he” still remains in the language. As a side question, can someone argue, in the event of a woman becoming president, that since the section uses “he” she cannot exercise those powers? Some literalist nut case might argue that the Constitution has no provision for a woman president to pardon self or others. I am being anal but one has to be in such matters.
Coming back to the presidential power to pardon and whether it includes the incumbent president’s ability to power self (I am avoiding gender deliberately here), it is a tricky question. It is being raised by the incumbent president himself by asserting that he has “complete power to pardon”. Although he does not say it explicitly, it is understood that by “complete” he means he can pardon himself.
There are of course deeply differing legal views about whether the president can pardon self with many legal scholars saying he cannot. The general consensus, if one can call it that, seems to be that this is an unresolved legal question. I found out in a Newsweek link on the subject that the Office of Legal Counsel at the Department of Justice had said this on August 5, 1974, “Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”
In the same document though this is also mentioned: “A different approach to the pardoning problem could be taken under Section 3 of the Twenty-Fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office.”
Is it possible that the Russia collusion investigation could come to a stage where President Donald Trump may consider the possibility of pardoning himself? It is not for me to speculate. But if it does, could he resort to what the 1974 document says as “a different approach to the pardoning problem”? Again, it is not for me to speculate.
Beyond the clever legalese, I find it rather unsettling that there is at least a theoretical possibility that any president can pardon self. That is a staggering power to possess. The fact that President Trump feels compelled to even think aloud about that tells one that he has considered the likelihood that the Russia collusion investigation could tighten around him personally. That may be just a theoretical consideration but it is a consideration nevertheless. Other than saying Wow! I am not sure I can say much else.
In keeping with the spirit of Article II, Section 2 I have decided to add that my own personal Constitution where I give myself the option to pardon myself in the event that I may so need it. So, pardon me.