Ever since President Donald Trump said he had an “absolute right” to pardon himself legal scholars and the media have been debating the subject nonstop.
But President Trump’s television attorney, Rudy Giuliani, should clearly warn his client to avoid even the idea of pardoning himself.
A little-known U.S. Supreme Court case from 1915, Burdick v. United States, held that when a person accepts a pardon it is a legal admission of guilt. Therefore Trump would be admitting that he is guilty of whatever crimes he is ultimately charged with by the Department of Justice.
If Trump is free from federal charges he can still be impeached. As many legal experts have said, the rules of evidence are different in an impeachment trial than in a criminal trial. This means that evidence a defense lawyer gets excluded in a trial would be admitted in an impeachment proceeding. Not only that, but after a pardon Trump could no longer invoke his 5th Amendment right against self incrimination. He would have to testify against himself.
Imagine the television ratings for a Trump impeachment trial where the rules of evidence don’t apply. The plaintiffs in such a trial would be the very Congresspeople who Trump has been insulting and abusing for years. They would be extremely vindictive and would bring up every nasty possible piece of evidence they could find to taint Trump’s reputation — and it would all be perfectly legal.
As Jason Easley wrote yesterday for PoliticusUSA:
“A person can’t be pardoned if they have done nothing wrong. If Trump were to pardon himself for obstruction of justice he would be admitting that he obstructed justice. Congress would have no choice but to impeach him. The pardon is not a get out of jail free card. Legally the president can’t pardon himself according to the Department of Justice, but if Trump tried, he would be impeached.”
Ken Gormley, president of Duquesne University in Pittsburgh, wrote an analysis of the Burdick case for the Washington Post in an article entitled, “If Trump pardons himself, he’s admitting he’s guilty of impeachable crimes.”
According to Gormley, the Burdick case was considered by President Gerald Ford before he issued a blanket pardon for disgraced former President Richard Nixon. Gormley wrote:
“In 1974, with the nation still haunted by the Watergate scandal, newly sworn-in President Gerald Ford discovered the 1915 Burdick case and fretted over its impact: What would it mean, legally, if he pardoned his predecessor Richard M. Nixon?
The case involved a New York newspaper editor, George Burdick, who had been subpoenaed to testify in a federal grand jury about sources for a story on government fraud. When Burdick refused to cooperate and pleaded the Fifth Amendment, then-President Woodrow Wilson thought he’d outsmart him: The grand jury called Burdick back and had a presidential pardon waiting for him. How could a person invoke the Fifth if he’d been pardoned of any crime?
But Burdick refused to accept the pardon; he insisted that it made him appear guilty. The case went to the Supreme Court, which agreed with the editor. The justices wrote that a pardon carried with it “an imputation of guilt” and that acceptance of a pardon was a “confession” of such guilt.”
After meeting with Ford’s representatives and his attorneys, Nixon ultimately accepted the pardon even though it required him to admit his guilt for crimes which he had previously denied committing.
According to Gormley, he had talked to Ford several times about these historical events and Ford expressed frustration that history remembered him for the pardon of Nixon but ignored that fact that he got Richard Nixon to admit he was guilty.
Of course in the Nixon case the president had the good sense to resign before he was impeached. Perhaps our current president will also reach the same conclusion once he is presented with the charges against him, but I wouldn’t bet on it.
What this means is that despite all the media furor over Trump’s comments about self-pardoning, they are meaningless. It will never happen. It appears to have been just one more distraction by Trump to take the public’s minds off of the real issues facing the country.
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