The self-pardoning tweet of President Trump has led to quite a lot of feedback from various commentators, which Jack Goldsmith helpfully collects into one post on Lawfare. Jack’s conclusion after surveying the crowd?
[Alan] Dershowitz is probably right to emphasize that in the unlikely event a president is willing to take on the political costs of self-pardoning, it is unlikely that a court will ever decide whether such a pardon is lawful. First, “a prosecutor would … have to try to prosecute the former president.” Then, “the former president would have to raise the pardon as a defense.” Finally, “the courts would have to decide whether, under our system of separation of powers, the courts have jurisdiction to review a presidential self-pardon.” Dershowitz might have also mentioned that the successor president could, without legal controversy and to alleviate doubt, pardon the self-pardoned former president.
In sum, there is no obvious right answer on the validity of self-pardons, and if Trump becomes the first president to pardon himself, a court will probably not provide an answer.
Far be it from me to disagree, but as a software engineer, this strikes me as one of those ugly corner cases which really needs a resolution, if only to make our future more predictable. Furthermore, I would hope that the judiciary would find against any such right of the President, for reasons I cited here.
The entire self-pardoning power, if permitted to exist, would be a weak ligament in the otherwise strong system of government we currently enjoy. This is not to suggest that these are not troubling times for non-Trumpists, but we’re not on the edge of armed insurrection; the resistance, outside of, perhaps, the antifa, seem dedicated to operating within the parameters of the law.
