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

[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.

[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.

[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.