Lawyer John Brinsmead-Stockham weighs in on the thorny question of Trump’s pardoning powers
With a single tweet, Donald Trump has provoked one of the most legally contentious issues of his already fraught presidency.
The question on the table is this: if the proverbial really hits the fan and Trump is found guilty of colluding with the Russians to win the presidency, or any other illegal activities, can he simply pardon himself?
We’ve spoken to lawyer John Brinsmead-Stockham about the history of pardons, how they should be used – and whether Trump is right about getting himself off the hook. Here’s what he told us…
Where does the pardoning power originally come from?
“The American presidential power to grant pardons and commute sentences is contained in the US Constitution (Article II, Section 2) and is the US equivalent of the royal prerogative powers in the UK (the Founding Fathers viewed the President, in some ways, as an elected monarch).
“The power is used more often in the US than in the UK and is rather more politicised. Bill Clinton got in a lot of trouble for pardoning Marc Rich [a businessman and political party donor] as he was leaving office.”
Doesn’t the pardoning power undermine the legal system?
“As far as the rule of law is concerned, you’re absolutely right – the granting of pardons does undermine the rule of law.
“However, it also recognises that sometimes the law gets it wrong, or becomes out of step with the morality of the present day. Accordingly, the power to grant pardons acts as a sort of safety valve – allowing justice to be done, in some cases, in spite of the law.”
Donald Trump has already used his pardoning power five times – including three high-profile conservative figures: the anti-immigrant ‘America’s Toughest Sheriff’ Joe Arpaio; former adviser to Vice President Dick Cheney, Scooter Libby; and far-right political filmmaker Dinesh D’Souza.
Didn’t Obama pardon Chelsea Manning before he left office?
“Chelsea didn’t actually get a pardon, instead she had her sentence commuted. The difference is that if you are pardoned you are formally treated as not having committed the crime at all, whereas with commutation all that happens is that your sentence is reduced.”
Do we have anything similar in the UK?
“In the UK, the power to pardon a criminal is one aspect of the royal prerogative of the monarch (it’s officially called the prerogative of mercy). The royal prerogative is essentially what’s left of the former absolute powers of the monarch.
“The idea is that the Crown still has some powers that are not subject to Parliament or the Courts, although those powers are now generally exercised by the Government on behalf of the Crown and can generally be subject to judicial review.
“Pardons are now rarely granted because there are other avenues to challenge miscarriages of justice (such as the Criminal Cases Review Commission), but they do sometimes happen – particularly in respect of old cases where the person convicted of the crime is now dead, including when Alan Turing was pardoned in 2013.”
So could Trump actually pardon himself?
“As for Trump pardoning himself – my understanding is that it is a really difficult question of US constitutional law. There is also a distinct question, equally difficult, as to whether an incumbent US president can even be indicted with a crime.”
“My instinct is that the Founding Fathers were products of the Enlightenment who believed in the rule of law rather than the rule of man. I think they would have balked at the idea of any person being completely above the law.”
According to CNBC, no US president has ever pardoned himself - but back when Richard Nixon was dealing with the Watergate crisis in 1974, he wrote to the Justice Department asking this very question.
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” Mary Lawton, former acting assistant attorney general for the Office of Legal Counsel, said in the memorandum at the time.
Nixon resigned soon after. But was pardoned by his vice president and successor Gerald Ford.