Trump claims he “absolutely” has the power to pardon himself. But you can’t pardon somebody for something they didn’t do. Or, conversely, a person cannot accept a pardon unless he admits he did it.
The framers of our Constitution had a lot to say about absolute power; they intended no one to have it for anything. In fact, the pardoning power is nothing more than an executive branch check on possible excesses of the legislature and judicial branches and a way to end civil strife. As Alexander Hamilton wrote in Federalist 74,“[I]n seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth …”
Thus, the framers gave the President a broad pardoning power, “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Article II, Section 2, Clause 1. They knew “to pardon” is a verb defining what you do for somebody else, not yourself.
Thus, if Trump’s wants to pardon himself, when he leaves office he could be charged with a crime and try to raise it as a defense after the fact. It would be risky, because by accepting a pardon from himself Trump would have admitted his guilt.
And, the Presidential Pardon by its very terms raises the specter of impeachment. No President can pardon someone from an impeachment, especially himself. The impeachment power is purely a legislative function as the Constitution says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article II, sec. 4.
The point Trump and his lawyers seem to miss is if he were to try to pardon himself, he would also admit to an impeachable offense.
Impeachment is a civil proceeding, which has a lower standard of proof than a criminal case. The proof in a criminal proceeding is the highest standard of “beyond a reasonable doubt.” If Trump pardons himself of a crime, he would have admitted to that crime under the beyond a reasonable doubt standard. This would not only form the probable cause necessary for the House of Representatives to impeach him, the Senate should convict him as a matter of course. A House prosecutor in the Senate would have nothing left to prove, Trump’s own pardon of himself is all the proof of guilt needed.
We live in a society and government founded on the rule of law. Laws are not just a bunch of technicalities but rules and procedures that matter. Politicians can at times exercise power and for a while even with impunity. But so far, America is about a higher standard than pardoning oneself.