b1-66er: I'm interested in any thoughts you have on this.
D4rw1n: I have said from the beginning that if Trump's lawyers had the courage of their convictions they should strongly advise him to pardon himself. I do not personally believe the constitution should be read to permit it, and I think it would be extraordinarily dangerous for the rest of us. But I think the greatest likelihood is that if he pardoned himself, he would get away with it.
I disagree with the Harvard professor quoted in the Times article. He calculates that a Trump self pardon would motivate the Biden Justice Department to pursue criminal charges against Trump. In my own view, that is a viper's nest at the bottom of a deep pitfall. I would expect the Biden DOJ to find any way possible not to get mired in that mess. They're going to have many other priorities, and not want the distraction.
In fact, I think it would take some very creative lawyering to convince a federal court to invalidate a presidential self-pardon. As articulated in the Constitution, the power is extraordinarily broad: "The president [shall] have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
There's a 1974 DOJ memo the somewhat weakly argues that the pardon power should not extend to a self-clemency. The argument relies on a generalized principle that no person should be permitted to be a judge in his own case. But that argument would be laughed out of court, in my view. The pardon power in no way makes the president a judge. It nearly makes the president a person holding the power to grant pardons for offenses against the United States.
Honestly, in my view, the only thing preventing a president from pardoning him or herself is respect for tradition. And I also believe strongly that President Trump's particular superpower is that he has no concern whatsoever for tradition.
Events of the last 24 hours might increase the pressure of a future Biden administration to dive in to try to prosecute the president. But I still don't think they will, for the reasons outlined above. One other very interesting and related constitutional provision is the 24th amendment. I believe there are some very agitated whispered conversations going on right now among the remaining cabinet members about whether the president can or should be removed.
b1: How's DC life been in the last 24?
D4: My hardest day as an American
b1: How so?
D4: I experienced a very strong spiral of disgust, fear for our most cherished American institutions (like vote counting), and depression over our deep political parting of ways
b1: (To show you how unpatriotic I was of it all, I was only JUST aware of it as it was all going down.
I was spending more time on my mom and her COVID injection of the day.
Outside of a TV yammering in a bar, I haven't watched American TV in 30 years...I don't even know if mine works.)
D4: Weirdly, I had to pick D5rw1n up at a dentist office downtown yesterday around 3 PM. So I was listening live while driving into it
Then doomscrolling it on news and social media for two hours while sitting in a dentist's waiting room on Eye Street .
b1: Yeah, that's weird.
Big days for power Democrats, though.
Getting Mr. Trump to say Uncle Biden.
Sweep in GA.
And the cherry on top of seeing a insurrectionist take a bullet.
[Like Patton sez, "The way you win isn't by taking a bullet for your country...
... It's by getting the other son of a bitch to take a bullet for THEIR country."]
