Super Lawyers
William C. Altreuter

Tuesday, June 05, 2018

Presidential self-pardon. Consider that Nixon was a solid enough lawyer to have actually practiced after his run for the California governorship failed. (He was probably mostly a rainmaker at Mudge, Rose, but still-- that was a reputable shop back in the day.) Nixon stopped short of pardoning himself. Nixon was a lot of things, but he was probably the last Republican President who was something other than a figurehead for shadowy interests.

The other part of this, the part that really doesn't seem to be said as much as it perhaps should be is that although we think of the Constitution as our foundational legal document it was certainly also intended as an outline which showed the frontiers of how American politics was expected to operated. We are on beyond Zebra now, but norms are still important in answering these questions. The best way to think about something like the limits of Article II Executive powers is probably to ask, Would a judge see it  that way? Put aside the politics of the Supreme Court for a moment-- what would the arguments in the District Court look like? What would you expect to read in the briefs before the DC Circuit Court of Appeals?

Impeachment is a political process that only looks like a criminal trial, and then only if you squint. I don't see this drama ending that way, but if it does I do not think there is a court in the land that would buy into to self-pardon idea. Accepting a pardon is an admission (see, Burdock v. US) and in the face of such an admission the job of the Senate would be to determine if removal constitutes the proper outcome.

| Comments:
The pardon power wasn't invented by, or defined in, the Constitution. It was a thing with a history, conferred upon the President, subject to certain limitations, as opposed to upon someone else or no one at all. I'm unaware of any historical examples of self-pardon, or any old commentary on the subject. Probably because nobody ever thought of such a thing. From which I would conclude that there is no such power.
As for Nixon's old firm, the link mentions Mudge Rose's prominent white-collar practice, which, if memory serves, was headed by Jed Rakoff, who moved on to other things.

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