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PRESIDENTIAL PARDON POWER – REVISITED

As Presidential Pardons are back in the news, the topic deserves additional consideration:

1. A pardon may precede criminal charges. One not need to be charged with crime to receive a pardon for potentially criminal activity. President Ford pardoned former President Richard Nixon prior to the filing of any criminal charges, conclusively ending “our long national nightmare.”

2. The President’s pardon power is virtually unlimited. And that is exactly what the Founding Fathers wanted. In Federalist No. 74, Alexander Hamilton wrote “pardoning should be as little as possible fettered or embarrassed.”

3. There is virtually no review of Presidential pardons. Keep in mind the Presidential pardon power is set forth in the Constitution itself (and not in any Amendment). Article II, Section 2, clause 1. The Constitution, on the issue of Pardon power, states:“The President. . . shall have power to grant reprieves and pardons for offices against the United States and except in cases of impeachment.” In fact, the President’s pardon power has only been contested in cases of treason.

4. It remains an open question whether the President may lawfully pardon himself.In his Tweet of June 4, 2018, at 8:35 a.m., President Trump asserted that the power to pardon himself was “absolute.” In reality, it’s a closer question. The Supreme Court has not ruled on the issue. The most significant guidance on the issue of whether the President can pardon himself comes in the context of the Watergate era in a rather short Memorandum from the Department of Justice (“DOJ”). In that document, the DOJ asserted no one may be a judge in his own case.

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