As President Donald Trump at last acknowledges that he will not be serving a second term in office, one of the pre-eminent questions among political pundits is whether the president can issue a pardon to himself and, if so, should he?
The answer to both is yes.
The president's pardon power is set out in Article II Section 2 of the U.S. Constitution. Although succinct, comprised of just 19 words, the section clearly defines this often-controversial power, arguably the most unfettered of the nation's chief executive.
The section states that the president "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."
The document means what it says. The framers of the Constitution held fierce public debate about each section, knowing the document was not only the architectural plan, but the legal foundation that our new nation would be built upon.
As an attorney, I hold an originalist view of the U.S. Constitution similar to that of the late Supreme Court Justice Antonin Scalia. Justice Scalia famously said the Constitution "means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
According to Article II, the only limit on the president's pardon power is that it cannot be used in the case of an impeachment. While some attorneys and legal scholars take the impeachment language to mean that a president cannot pardon himself, they miss the mark. Impeachment is a tool that Congress has to remove any criminal or derelict office-holder ... not just the president.
Those who believe the president cannot pardon himself also often point to a 1970s-era memo written by the U.S. Department of Justice to President Richard M. Nixon when he was considering pardoning himself. In the memo, the lawyers conclude that due to the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.
Simply put, the Department of Justice got it wrong. A pardon prevents or eliminates a judicial determination of guilt and subsequent punishment. It is by its very nature a remedy to a judgment. Therefore, a president who grants himself a pardon is not judging himself.
The president's detractors ask why Trump would need a pardon if he is innocent. The president has made many enemies on the left during this time in office. Some of those enemies are U.S. attorneys who can harness the nearly unlimited resources of the Department of Justice to exact their revenge. In Trump's case, one mistake on a tax return would likely result in felony charges.
A self-pardon is President Trump's best protection from the inevitable flurry of investigations the Joe Biden Department of Justice will unleash upon him after he leaves office, scrutiny few if any of us could withstand. Once the cloak of presidential immunity is removed, the hounds of harassment will be unleashed over matters from personal income taxes and Trump University to campaign finance issues. These endless investigations would cost him millions in legal fees and tarnish his legacy.
Anyone who questions what's coming need only watch the parade of liberal former prosecutors laying out their cases against him non-stop on CNN. These so-called agents of justice are calling for the president to be charged with everything from sedition to inciting a riot due to his alleged role in the horrific attack on our nation's capital.
Make no mistake, the events of Jan. 6 are a stain on our history we may never wash away. That date will forever live in infamy because the heart of our democracy was desecrated by our own people. Sure enough, the president needs to own his role in fanning the flames of aggression which set the U.S. Capitol ablaze. However, this writer believes the stigma that the president's actions have placed on his own legacy is punishment enough.
A self-pardon is not only of benefit to the president and members of his family. More than 73 million Americans voted for Donald J. Trump in 2020, a few thousand of which heeded his call to protest in D.C. The needless federal prosecution of private citizen Trump would only further feed the flames of division and destruction in our great nation. And should he be convicted, it would unleash a new wave of unrest and divisiveness that all too easily erodes into violence.
President Trump should pardon himself. And, privately, President-elect Biden should thank him for it. With the public spectacle of a federal Trump trial off the table, the Biden administration can focus on solving the covid-19 quagmire. And our great nation can allow the sun to set on this age of intense civil animosity as we take our first steps toward a better tomorrow.
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Sylvester Smith is a conservative attorney, business consultant and legislative lobbyist in Arkansas. He has appeared on Fox News and other outlets to share political commentary. Mr. Smith can be reached at ssmith@cagents.co.