So sayeth the DOJ. It looks like, sometime in the last day or so, the URL got out to a memorandum of opinion written for the Deputy AG by Mary Lawton, acting assistant AG in the Office of Legal Counsel.
IT’s only three pages long, though the page numbers start at 370 for some reason. It starts by reproducing the opinion given in 1974 in the case of Richard Nixon:
Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.
If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.
Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.
We hear “no one is above the law” a lot these days, but it’s too vague to translate into a real legal principle. But “no one may be a judge in his own case” is clear, simple, and so logical that it is indeed a “fundamental rule”.
The pardon power is identical to that of an apellate court judge; the act of granting or withholding a pardon is the same as reviewing a lower court case and deciding to uphold or overturn. The President is a judge by virtue of his pardon power.
Any time any where, the holder of pardon power can never apply it to himself. The Constitution doesn’t have to say so, it’s baked into the DNA of the very concept.
The rest of the paper is a new opinion affirming and expanding on the the first part of the 1974 precedent. It too provides advice on how to circumvent the constitutional obstacles (hint: “Pardon me, Jerry”). But there’s also a lot of material on whether Congress has pardon power (no is the updated opinion), and whether Congress can enact legislation that bars prosecution or could be used as a get-outta-jail-free card by favored defendents (yes, sad to say). Conversely, Congress can’t order the President to issue a pardon (a special resolution to that effect would be merely “hortatory”).
The opinion also reassuringly establishes that impeachment followed by prosecution would not constitute double jeopardy. America could impeach our Trump and jail him too.
Who’d have thought the law could be so much fun?