The Pardon Power: “The Power Not The Right”


“When I saw media reports Melania Trump had not been seen for 20-some days, I started thinking again about the Constitution, the Pardon Power…”

Kary Love
Published in: The Clarion-Ledger, Sierra County Prospect, Counterpunch
Date: June 5,8,2018
698 Words

For the full article:
The Pardon Power: “The Power Not The Right” — What If Trump Shot Melania?
698 Words
By Kary Love

When I saw media reports Melania Trump had not been seen for 20-some days, I started thinking again about the Constitution, the Pardon Power and the nature of the rule of law. Such are modern times. What if Trump did it? I wondered. What if he had “shot someone on 5th avenue in broad daylight?” What if he had done away with Melania? Could he pardon himself?

I like to rely on the actual language of the Constitution to answer such questions, resorting to writings of the Framers only in the event of ambiguity. Here is the Pardon Power granted by Article II, Section 2 of the Constitution:

The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Since the Constitution was written for the people, not the lawyers, it is usually pretty easy to read. Clearly the President is granted broad power to pardon anyone for an offense against the US (state crimes for the same act can still be prosecuted), so long as the offense has been committed prior to the pardon, no power is granted to pardon for planned or future offenses. There is no limit in the language on the President’s power to pardon the President himself (except if impeached.) So, I concluded, that if Trump had offed Melania, he could pardon himself and avoid federal prosecution. State law prosecution would still lie for murder.

Many are not satisfied with this result. The Framers knew this defect existed. But they believed the power of clemency to be so important, that giving the power of mercy to the government so essential, because government tended to screw up so badly so often, that acceptance of the defect was necessary to ensure the possibility of mercy.

However, the Framers did not turn a blind eye to this defect. They warned the American people in the Federalist Papers that it was their job to ensure they did not elect a President of such tawdry character, such shameful morals, such disregard for the rule of law, that he or she would be liable to commit a crime and, if having done so, would claim to be above the law applying to all other Americans, and pardon him or herself.

The Framers knew the danger of electing persons of shallow character to high office, they had, after all, dealt with the insanity of George III, and had learned the necessity of avoiding unfit persons. The Framers, and the anti-Federalists who opposed the Constitution as giving the federal government too much power, pointed out that if the American people abandoned common sense and good judgment, and elected as President a person of defective moral insight, dangers to the American people and good government would abound. Hence, the framing generation warned repeatedly: Elect decent, moral people dedicated to serving the republic not themselves or even the Constitution could devolve into tyrannical government. (As an added “protection” against demagogues selling BS to the people, they had the Electoral College actually elect the President). But, no Constitution or law can save the people if they lose their judgment and elect a person of known defective character. Such a people, exercising the hard-won franchise of their ancestors, the Framers knew, would themselves have lost their moral compass and have no one to blame but themselves for their devolution from republic to dictatorship.

Fortunately, the American people are, by and large, a moral people. They are capable of judgment. They know something may be technically legal and morally repugnant. And because most believe moral laws, derived from god, are prior to human law and take precedence over human law, the American People can repudiate legal actions that are immoral. Such as a President who pardons himself for committing an offense against the United States. Sure, the people can say, you have the power, but we decide you do not have the moral right. Impeachment is one response. Vote the slime ball out of office is another. Ratify his immorality and accept the consequences of your decision, the slippery slide into the dark side.

As for Melania, of whom I appear to have lost sight: good luck.
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Kary Love is a Michigan attorney who has defended nuclear resisters, including some desperado nuns, in court for decades and will on occasion use blunt force satire or actual legal arguments to make a point.

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