Q&A: CSUB professor discusses legality of sitting president pardoning oneself

January 19, 2021 /

Donald Trump was impeached last week for the role he played in the riot at the capitol. This is the second time he has been impeached and the first time in history a president has been impeached twice. Trump had spoken before about pardoning himself if impeached. 

During his term President Trump has pardoned dozens of people, some of whom were very close to him. He has even consulted with his attorneys about possibly pardoning himself. Kern Sol News sat down with Jeanine Kraybill, Associate Professor in Political Science at Cal State Bakersfield, to discuss the legality of a sitting president pardoning themselves, this historical context of pardons, and how President’s Trump’s pardons are different than any other president in U.S. history. 

This interview has been edited for length and clarity. 

Q: What does the constitution say about a sitting president pardoning himself? 

A: Well when you look at the constitution and pardoning power in the constitution, it’s based off of Article 2, Section 2, Clause 1. In there it talks about the President should have power to do things like grant reprieves and pardons for offences against the United States, except in cases of impeachment. Say for example a federal judge is impeached, the president can’t pardon that individual. Another thing that’s helpful for folks to remember is the pardon power is two things. One, it doesn’t apply to state — only federal law, so the pardoning power can be brought but there’s also limitations to it, and it’s not absolute. Two, a President’s pardons can get contested in court, so that’s another thing to keep in mind. It is a broad power, and it stems from kind of our English common law history. It’s the idea of granting mercy or if public sedenate felt that a sentence was too harsh or something of that nature, this ability to give some sort of equal justice if you don’t think that it’s been applied. So it’s broad, but it doesn’t mean that it’s absolute. In regards to President Trump being able to pardon himself, that would be us kind of getting into some new legal territory. Because, we haven’t had a president articulate wanting to do that. 

Q: Have people ever tried to take away pardoning? 

A: We haven’t seen in American U.S. history people trying to take away the pardoning power. You’ve had, at times, where it’s been questioned. When Donald Trump issued a pardon with regards to Sheriff Arpaio in Maricopa County, Arizona, that did get contested, but the pardon held. In terms of taking it away, that would be difficult because you would have to literally amend the Constitution, and that’s a challenging process. So you haven’t seen that be done. But like I said, it’s broad, but it does have limits. 

Q: Do you think President Trump will be able to pull off pardoning himself? 

A: I personally do not think he will be able to pardon himself. That doesn’t mean he won’t maybe try, right? I feel like we live in a time where it seems like anything is possible. It’s really difficult to predict the behavior of Donald Trump. I think regardless of what side of the aisle you’re on, I think that most people have that feeling. This is what I think could happen. I’m not saying he’s going to pardon himself, but if he does pardon himself, I think that will get contested in federal court. The other thing, too, is there’s a couple of interruptions about the ability of a president to pardon themselves. So, one thing to think about with regards to the pardoning power that would make the president the judge in his own case. That would put the president above the law. What’s really important about thinking about the pardoning power is a pardon is something that is given to another. That’s been the practice. It’s bestowed on another. it’s not given to oneself. It would be putting the President above the law, and in our system, it’s supposed to be designed that no one is above the law. That even the president is held accountable to the law. That’s why I think that it would not be a successful attempt. It would be ultimately a failed attempt. 

Q: How do you think the result of the impeachment and the possible process of him trying to pardon himself will affect the social climate in Kern County? 

A: Kern County, as we know, is more republican. However, we have seen that there are parts of the County that are more purple and even though we do have more registered Republicans, we have in previous elections seen Democrats register Democrats beyond the rise. So I think that with Donald Trump’s impeachment, you’re going to have some folks in Kern County that are very loyal to the President that feel that what he’s done is not a threat on our democracy. So they are going to think that impeachment is unnecessary and only further dividing the country. We hear that narrative and Kevin McCarthy has been espousing that narrative. I think Kevin McCarthy voted against impeachment, but David Vallasao voted for impeachment. I think that even shows the divide, and they’re both Republicans. Because I think on the other side there are not just Democrats, but there’s some Republicans that are saying there’s gotta be a kind of align.

Q: What would you say to people losing hope in the democracy we have today? 

A: I would say it’s understandable to be upset right now and to not want anything to do with it. We are in the constant news cycle, and it’s fatiguing on top of COVID, which should be what we are all focused on getting out of. I would first and foremost want to tell people that I understand where you’re coming from. But these are actually the times where we need to all work together to make it better. Sometimes when we look at what’s happening nationally, it gives like ‘oh I’m not going to change anything’ feeling, but what can you do locally in your community? I’m going to speak civilly. This is an opportunity to learn more about our Constitution and our systems of government more about holding our elected officials accountable. So even though you feel like you want to be on the sidelines, this is the time to say, ‘Okay, I might not be able to solve everything, but I, as an individual, play a part in my democracy in my community.’

JaNell Gore

JaNell Gore

Ja'Nell Gore is a student at Bakersfield College. In addition to writing for South Kern Sol, Ja'Nell is involved with several clubs at her school. Ja'Nell enjoys writing and listening to spoken word.