Michael Gaynor
The Constitution does not limit the presidential pardon power except in case of impeachment
By Michael Gaynor
June 6, 2018

"When granted [a presidential pardon] is the determination of the ultimate authority that the public welfare is better served by inflicting less than what the judgment fixed."

The debate over whether a President of the United States can pardon himself or herself should be resolved by looking to the language of the Constitution and United States Supreme Court analysis of the presidential pardon power, not political preference.

Article II, Section 2 of the Constitution vests the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" in the President of the United States.

It's not surprising that Mark Levin looked to the Constitution and stated: "Here is the language of the constitution, Article II, Section Two, The president has the power to grant reprieves and pardons for offenses against the United States except in case of impeachment. Do you here anything in there, except in the case of the president."

There is no such exception, and none should be read into the Constitution.

If the Constitution should be amended, it should be amended in accordance with its terms, not under the guise of judicial interpretation.

In 1927, the United States Supreme Court, in Biddle v. Perovich, 274 U.S. 480, 486, explained: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare is better served by inflicting less than what the judgment fixed."

The President of the United States is that "ultimate authority."

Now Donald J. Trump is that "ultimate authority" and it is for him to determine what is better for the public welfare.

If a President pardons himself or herself, it does not put that President "above the law."

The check on the presidential pardon power is impeachment.

Those who insist that a President cannot pardon himself or herself rely on a three page Memorandum Opinion for the Deputy Attorney General dated August 5, 1974 and written by Mary C. Lawton, Acting Assistant Attorney General Office of Legal Counsel.

Lawton reached her conclusion by reading an exception into the presidential pardon power.

Lawton's case is succinct: "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 negative."

Lawton added: "The necessity doctrine would not appear applicable here. in which the sole or all judges or officials who have jurisdiction to decide a case are disqualified because they belong to a class of persons who have some interest in the outcome of the litigation, thus depriving the citizen of a forum to have his case decided. In that situation the disqualification rule is frequently relaxed to avoid a denial of justice."

There is a sole judge on whether or not the presidential pardon power should or should not be exercised: the President of the United States.

The issue for the President is whether or not the issuance of a pardon promotes the public welfare.

Lawton seemed to like the idea that a President who wants to pardon himself or herself should instead declare that he or she is temporarily unable to perform the duties of office and the Vice President would become Acting President and decide whether or not the President should be pardoned.

As though that Acting President would not have an interest in how the to pardon or not to pardon would be decided.

It is necessary for a President to decide whether or not to pardon himself or herself and it would be for Congress to impeach and convict, or impeach and not convict, or not impeachment.

The President is not immune from impeachment by a majority of the House of Representatives and convictions by two-thirds of the Senate.

Levin: "All of these protections are built into the constitution to protect the constitution, to protect the president from the mob, from the media, from the Democrats who are a mob today. They're here to protect him. It's not the president who's violating the constitution, it's the media who want the constitution violated. It's the Democrats who want the constitution violated. It's Mueller and his merry band of Democrat prosecutors who are tipping around a constitutional confrontation."

No wonder Sean Hannity calls Levin "the Great One!"

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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