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Can Trump pardon himself? A UC Hastings law professor weighs in

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President Trump has already issued pardons , including former campaign chairman Paul Manafort, former national security adviser Michael Flynn and others convicted of crimes following Robert Mueller’s investigation of Russian interference.He also pardoned four American contractors convicted of killing Iraqi civilians in 2007, among others.But the biggest question remains surrounding the outgoing president’s clemency choices: Will Trump attempt to pardon himself?The Chronicle spoke to Aaron Rappaport, a criminal law professor at UC Hastings, about the history of the presidential pardon, how Trump might try to use it and why the outgoing president’s quest for immunity may test Joe Biden’s calls for unity.Here are excerpts from the interview, which has been edited for length and clarity.What does the Constitution say about the president’s power to bestow pardons?AR: The Constitution simply says that the president has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.Most people, when they read that text, envision a broad grant of authority to the president. The text specifies two limits: One is that pardons should only be for federal crimes and two is that pardons can't be used to interfere with impeachment proceedings.What has the Supreme Court said about the limits of the presidential pardon?AR: Given the nature of a pardon, there haven’t been a huge number of Supreme Court test cases. Who is going to appeal a pardon? The person receiving the pardon is not going to challenge it and the prosecutors usually won't challenge it, because they are part of the executive branch granting it. But there are some cases — usually under unique settings.Related StoriesThe Supreme Court has indicated what is widely referred to as an originalist methodology for interpreting the pardon clause, meaning you have to look at the original intent of the Framers of the Constitution. The way to understand what the Framers thought of pardons to look at English law at the time of the Constitution's drafting. The court has been very explicit — history has to be our guide here.In my scholarship, I’ve looked at the historical instructions or limitations on the pardon clause. And there is a modest limitation — one that would constrain a lot of what President Trump might want to do. I refer to it as the specificity requirement.What is the specificity requirement?AR: The specificity requirement requires the identification of the offenses that a person has committed, meaning that blanket pardons are invalid. It’s a short phrase that I think captures what was in English law in the 18th century.There has been a lot of talk about President Trump granting his children or political allies blanket pardons for any and all crimes they committed at a certain time or place. The classic example is President Gerald Ford's pardon of Richard Nixon, which was for any and all crimes during this time in office. That's a blanket pardon.My research suggests that — if you look at the history of pardons in England — the President or king must specify the offense to be pardoned for it to be valid. It is not permissible to pardon someone for any and all offenses.What President Trump has been talking about, which is these blanket pardons for his children or for Rudy Giuliani or others, would be improper.Does that mean that Ford's pardon of President Nixon was beyond his authority?AR: Exactly. Ford’s pardon of Nixon was never challenged.The special counsel at the time, Leon Jaworski, decided not to pursue charges against Nixon. If he had, there is a plausible argument that the pardon would have been deemed invalid.If President Trump tries to pardon his children without listing any specific crimes, do you think it might be challenged?AR: This is the question. There is a chance that prosecutors under President Biden might bring charges depending on what they find. And then we would have a test case that would go to the Supreme Court.Obviously that would depend on a lot of questions: Would President Biden want that case to go forward? Would prosecutors listen to President Biden? Prosecutors have some independence in making these decisions. But I think that it is at least a possibility, especially if some of the information that comes out is pretty egregious.Are there any other limits on the President’s pardon power?AR: Some legal scholars have argued that you can't look at the pardon clause in isolation, that other clauses of the Constitution must also be taken into account. One example is the “take care clause,” which says the president has a duty to promote the public interest. Some scholars argue that if the president grants a pardon for private or self-serving reasons —reasons not in the public interest — that pardon would be void.Updated to include drought zones while tracking water shortage status of your area, plus reservoir levels and a list of restrictions for the Bay Area’s largest water districts.I would also add that a corrupt pardon — a pardon to buy a person's silence or to stop an investigation — could independently open up the president to charges of bribery or obstruction of justice.To give a concrete example: Some people feel that President Trump’s pardon of Roger Stone was a reward for Stone remaining quiet. If that is true, the pardon could be permitted, but the president could later be prosecuted for obstruction of justice or bribery.You’ve written that “even if Trump were shameless enough to issue a pardon with an exhaustive list of crimes, the very list itself would undermine the validity of the pardon.” Can you explain?AR: If you are required to spell out all the reasons why you are going to be pardoned and it includes things like electoral fraud or tax fraud, it becomes clear that it is mostly about you protecting yourself.In some cases, and Donald Trump may be an example, the more he spells out the crimes that he has committed, the less he can make the argument that he is innocent.So creating this exhaustive list could be seen as essentially an admission of guilt?AR: That’s right. It removes the limited opportunity someone would have to say, ‘I haven't done anything wrong.’Realistically, Donald Trump is not going to list every possibility. I think the most realistic likelihood is that he issues a blanket pardon to himself, or Vice President Pence will issue a blanket pardon. And there will be a debate about whether that's permissible or not.What role might Vice President Pence might play in this?AR: The idea of a self pardon is legally suspect. Most legal scholars would say pardoning yourself is unlikely to succeed and that the Supreme Court would invalidate a self pardon.Donald Trump is likely to look for other ways of getting a pardon for himself. The most likely way is for him to follow Nixon’s model, step down, have Michael Pence become president and pardon him in the last week, for example. That just seems like a legally stronger approach.Nora Mishanec is a San Francisco Chronicle staff writer. Email: Twitter:Updated to include drought zones while tracking water shortage status of your area, plus reservoir levels and a list of restrictions for the Bay Area’s largest water districts.

President Trump has already issued pardons , including former campaign chairman Paul Manafort, former national security adviser Michael Flynn and others convicted of crimes following Robert Mueller’s investigation of Russian interference.He also pardoned four American contractors convicted of killing Iraqi civilians in 2007, among others.But the biggest question remains surrounding the outgoing president’s clemency choices: Will Trump attempt to pardon himself?The Chronicle spoke to Aaron Rappaport, a criminal law professor at UC Hastings, about the history of the presidential pardon, how...

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Nora Mishanec

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Can Trump pardon himself? A UC Hastings law professor weighs in

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