How would the Supreme Court rule on the validity of a self-pardon?

[they don't love you like i love you]

I suspect the decision would be at least 5-4 against it. The liberals plus Roberts and it's tough to see Gorsuch upholding such an undefined and easy to abuse power of the Executive.

Kavanaugh and ACB are swing votes, probably don't give a sh!t about Trump personally now that they have their spots (Kavanaugh clearly doesn't), but might still believe it's constitutional, who knows.

Thomas and Alito almost certainly would uphold Trump's power on it. I could even see them saying along the lines of "well it's actually not allowed but since that wasn't clear until now we can't say Trump can't so his self-pardon is upheld but no future ones are."

Ironically I actually believe RBG would've been a potential vote to uphold it. Probably wouldn't though.

[brucejoel99]

Yeah, there's no common law precedent for self-pardons that the "originalists" on the court can point to: no English king pardoned himself, CL judges have never sat in judgement of their own case, etc. The idea that the Founders would've wanted a President to be able to self-pardon was never discussed because it was a ludicrous idea (as it still is).

In the end, I don't see the Court having any basis for concluding that the President can self-pardon, except maybe some self-serving textualist belief in which the words convey the power regardless of whether or not the drafters ever contemplated such a power (which is what would probably form the basis of the navel-gazing opinion that Alito would definitely write). In any event, though, I just don't think that Roberts & Gorsuch would go out on that limb for Donald Trump, of all people.

[NewYorkExpress]

8-1 in favor.

Only one of Sotomayor/Kagan dissents.

Roberts or possibly Breyer writes the majority opinion.

[True Federalist (진정한 연방 주의자)]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

[brucejoel99]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

An impeachment trial wouldn't trigger double jeopardy in a criminal prosecution. Double jeopardy only applies to criminal charges & impeachment isn't a criminal charge, having no effect other than to potentially cause somebody holding a public office to be removed from said office. It doesn't resolve the issues decided there in a subsequent criminal case, & certainly doesn't constitute a criminal conviction or an attempt thereof.

[True Federalist (진정한 연방 주의자)]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

An impeachment trial wouldn't trigger double jeopardy in a criminal prosecution. Double jeopardy only applies to criminal charges & impeachment isn't a criminal charge, having no effect other than to potentially cause somebody holding a public office to be removed from said office. It doesn't resolve the issues decided there in a subsequent criminal case, & certainly doesn't constitute a criminal conviction or an attempt

Yes, impeachment isn't a criminal trial, but as far as trying to infer something out of the penumbras of the Constitution, it isn't as far fetched as some other penumbral inferences the Court has made over the decades. Also, it's a way for the Court to dodge the issue of the validity of self-pardons. It's not a slam dunk, but if I were unfortunate enough to be Trump's defense council, I'd at least include it in a defense unless there's some prior precedent that indicates it definitely wouldn't work.

Since the standard needed for a conviction in an impeachment trial is far lower than the unanimous jury that Ramos requires for criminal trials, it's not an unreasonable proposition that being found not guilty in an impeachment trial could provide double jeopardy immunity in criminal trials involving the same charge, tho it certainly isn't explicitly stated in the Fifth Amendment.

[they don't love you like i love you]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

[True Federalist (진정한 연방 주의자)]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

But are they Federal charges, and is there any realistic chance of getting a conviction on them?  The last thing this country needs is to prosecute Trump and thus give him a legitimate reason to be in the news unless he actually goes to prison.

[they don't love you like i love you]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

But are they Federal charges, and is there any realistic chance of getting a conviction on them?  The last thing this country needs is to prosecute Trump and thus give him a legitimate reason to be in the news unless he actually goes to prison.

I mean he's already basically committed attempted election tampering in just the past month. I'd be surprised if nothing can be landed on a guy who basically ran a criminal enterprise from the White House for the last four years aside from charges from one specific incident.

[True Federalist (진정한 연방 주의자)]

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

But are they Federal charges, and is there any realistic chance of getting a conviction on them?  The last thing this country needs is to prosecute Trump and thus give him a legitimate reason to be in the news unless he actually goes to prison.

I mean he's already basically committed attempted election tampering in just the past month. I'd be surprised if nothing can be landed on a guy who basically ran a criminal enterprise from the White House for the last four years aside from charges from one specific incident.

Shady and despicable aren't necessarily criminal. While what he has publicly done since Election Day is certainly detrimental to the good of our country, I don't see anything that is unambiguously criminal.

[Former President tack50]

Why wouldn't a self pardon be allowed to stand? There is nothing in the constitution that says a president can't pardon himself?

It is a very obvious oversight and easily leads to abuses of power, but that's what constitutional amendments are for?

[(no subject)]

The obvious question is Why didn't Richard Nixon self-pardon?

[brucejoel99]

Why wouldn't a self pardon be allowed to stand? There is nothing in the constitution that says a president can't pardon himself?

It is a very obvious oversight and easily leads to abuses of power, but that's what constitutional amendments are for?

There arguably is. The Pardon Clause provides that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment." Here, the inclusion of the word "grant" & the very definition of the word "pardon" become relevant because one cannot really grant something - let alone forgiveness - to oneself. I'd wager that if Scalia were still alive, he'd have a field day with this (&, in that same vain, Gorsuch may very well have one yet).

The obvious question is Why didn't Richard Nixon self-pardon?

Because the DOJ advised him that they believed that he didn't have that authority, & he actually listened.

[Ferguson97]

5-4, with Roberts, Kagan, Breyer, and Sotomayor dissenting.

[StateBoiler]

There's a very easy way for Congress to stop any president from ever self-pardoning. Pass a constitutional amendment invalidating it and if they want, to, limiting the president's pardon power as it applies to everyone else as well. But they either don't really want to do that, or are just lazy. It's no different than the size of the Supreme Court question and court packing. It'd be incredibly easy to pass an amendment mandating a maximum size. Again, they either don't want to limit the president's power when it's in their interest, or they're just lazy.

[Torie]

I can't imagine SCOTUS upholding a self pardon. That would give a sociopath POTUS the power to violate any federal law out there with impunity. That isn't going to happen. But we are not going to find out, unless Trump does it in the next hour, or has already put it in the Presidential desk drawer in lieu of a best wishes and good luck note to his successor.

[True Federalist (진정한 연방 주의자)]

There's a very easy way for Congress to stop any president from ever self-pardoning. Pass a constitutional amendment invalidating it and if they want, to, limiting the president's pardon power as it applies to everyone else as well. But they either don't really want to do that, or are just lazy. It's no different than the size of the Supreme Court question and court packing. It'd be incredibly easy to pass an amendment mandating a maximum size. Again, they either don't want to limit the president's power when it's in their interest, or they're just lazy.

I think you don't understand how difficult it is to amend our Constitution. There's zero chance of an amendment addressing a theoretical problem will be sent to the States, let alone ratified by the States, until such time as it becomes an actual problem. The clearest example of that dynamic is the Child Labor Amendment. It was sent to the States only after the Court had overturned some child labor laws and then its progress towards ratification halted once the Court had decided child labor laws actually were acceptable despite the risk the Court could rereverse itself back to its original opinion. Fortunately, that amendment has no time limit attached, so if the Court ever did do that, it would be relatively easy to restore the Constitutionality of child labor laws. (It only needs 10 more States, soon to be 11 likely, and there are 8, soon to be 10, that should easily ratify if needed. So it wouldn't take much of a push to get it done.)

[StateBoiler]

There's a very easy way for Congress to stop any president from ever self-pardoning. Pass a constitutional amendment invalidating it and if they want, to, limiting the president's pardon power as it applies to everyone else as well. But they either don't really want to do that, or are just lazy. It's no different than the size of the Supreme Court question and court packing. It'd be incredibly easy to pass an amendment mandating a maximum size. Again, they either don't want to limit the president's power when it's in their interest, or they're just lazy.

I think you don't understand how difficult it is to amend our Constitution. There's zero chance of an amendment addressing a theoretical problem will be sent to the States, let alone ratified by the States, until such time as it becomes an actual problem.

You captured my contempt of politicians in a nutshell. Well done.

I'm an engineer that works on NASA satellites for a living. I solve theoretical problems every day because the cost of eventual failure if it occurs is so high. Companies in fact get sued in court all the time for millions of dollars for putting out a product where their engineers did not contemplate theoretical problems that could become eventual failures. Our current politicians, per you, do not care about eventual failures of government and the costs that come with them. This is your argument: they don't care. Do not sit here and bitch about the president using the power of pardon for whatever he pleases when the Constitution says he can pardon whoever he pleases and then after he pardons whoever he pleases not seek to change the law. You are a complete f#&king failure if you do that and are an elected member of Congress. I'm willing to sit here and argue this point for hours. You've been tasked by the population of this country to be given an immense amount of power to represent them in government, and when called on it in times of crisis if you see something wrong, do jacksh**t with it.

Pelosi et al are fine with President Trump pardoning everyone he pardoned. If they were not, there's nothing stopping them from introducing a bill to change the president's ability to pardon. They have a majority to do whatever the f#&k they want. If Republicans vote against it and it doesn't get two-thirds, so be it, that means they're not allowed to bitch about Biden's pardons (or when Congress should've taken action to curtail the executive's ability to pardon in my opinion, 2001 when Clinton left office and pardoned every Democratic Party fundraiser he could find including Marc Rich).

I'm philosophically opposed to the executive power of pardon, but it exists. The Supreme Court changing the number of members to greater than 9 however is a very real danger to this country. This has been threatened twice now in our country's history. The only argument you have for why nothing has mandated the maximum size of the court is both parties want their president when they hold the office to have the option of doing it if they so desire. Someday with perpetual congressional inaction, that glass box is going to be inevitably shattered, because forever is a long time. One more tea leaf to show this country is becoming more and more monarchial in character as the legislature becomes a complete irrelevance. And both parties are to blame for that.

We can remove this contempt from present politics. They never took any legislative action on the problems pointed out by the post-9/11 Continuity of Government Commission...after attacks on Washington, D.C. "No, let's just wait for the real problem to occur of the entire line of succession being eliminated because they all live in D.C. and almost all congressmen blown up in a bombing before we worry about who is running the country and the House not having a quorum for several months."

[StateBoiler]

I can't imagine SCOTUS upholding a self pardon.

Or you can just solve the problem forever by codifying in the Constitution the president is not allowed to pardon himself for crimes committed (or extend it to also Officers of the country which would be better, that way the president does not order his Cabinet official to break the law, there's nothing public to tie the president to the deed, and the Cabinet official is then pardoned after the fact). But no, we have a bunch of elected lazysh**ts in Congress that don't care about the future wellbeing of this country.

[NYDem]

I firmly believe that the Supreme Court would never uphold a Presidential self-pardon, even if it would require a very strained reading of the Constitution to do so. Allowing a President to pardon themselves would be such a massive hole in the Constitution that it could render the rest of the document meaningless.

[True Federalist (진정한 연방 주의자)]

I firmly believe that the Supreme Court would never uphold a Presidential self-pardon, even if it would require a very strained reading of the Constitution to do so. Allowing a President to pardon themselves would be such a massive hole in the Constitution that it could render the rest of the document meaningless.

It only becomes a loophole if pre-emptive pardons are Constitutional.  The Constitution already explicitly bars the President from granting pardons in cases of impeachment. So, it's fairly clear that the expectation was that in a case of a President acting as if ey were above the law, Congress impeaches and convicts, then the ex-President is tried and convicted in the courts.

The Constitutionality of pre-emptive pardons has never been established because no later administration has attempted to prosecute those pardoned before being tried, let alone convicted. Given the potential of abuse in pre-emptive pardons, there's a good case to be made they shouldn't be Constitutional. (Imagine if you will that instead of Buchanan being merely impotent, he'd tried to actively aid the South in secession after Lincoln's election and pardoned on the morning of March 4 both himself and his underlings, such as Secretary of War John Floyd, for their actions in transferring Federal arms and supplies to the seceding States.)