On the question of whether a president can pardon himself, we're seeing an abundance of knee-jerk partisanship and dishonest journalism.
Virtually every Dem is saying "of course not, the president can't pardon himself (mostly because we hate Trump)." On the other hand, some Rs are saying "of course the president can."
If we were actually focusing on the Constitution, the answer would be more complicated. The text of the Constitution provides, the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
That text has no limitation on WHOM can be pardoned (although nobody can be pardoned from impeachment or for non-federal offenses).
However, in the 1970s, the Department of Justice did issue a legal opinion that the president cannot pardon himself, relying on the principle that nobody can be the judge in his own case.
That legal principle has a long and venerable history, but it is not reflected in the constitutional text.
Whether the Department of Justice opinion is right is an open legal question, with scholars on both sides of the political spectrum disagreeing in good faith.
Some dishonest journalists have attacked me for "taking 18 seconds" to answer -- without acknowledging that I was walking through the Capitol, late to a meeting, and simply ignoring a question that a reporter had called out at me (as senators do every single day in the Capitol).
When reporters chased me down the hall, and another asked the question again, I chose to answer.
Yet others (see bit.ly/2M0mf6e) have focused on my criticisms of President Obama's abuse of executive power, suggesting that it is somehow hypocritical not to oppose Trump's assertion of executive power.
They cite a law review article I wrote saying that Obama's executive amnesty was illegal, and that the pardon power did not justify it.
What those attacks miss is that it is clear that (1) pardons must be retrospective (looking to crimes in the past), not prospective (pardoning future crimes), and (2) they must be addressed to specific persons, not generic categories of offenses.
Both are straightforward legal propositions; neither is implicated because they do not concern WHOM can be pardoned.
Finally, other partisan journalists have attacked me for saying "that is not a constitutional issue I have studied, so I will withhold judgment at this point." That was true then, and is true now.
This is not a question one should answer based on knee-jerk partisanship, as opposed to careful constitutional analysis.
As for me, I still haven't studied the issue at that level of detail, and I don't intend to -- because this is nothing more than an academic debate.
At this point, none of the investigations has demonstrated any criminal conduct needing to be pardoned, as much as those who hate the president might wish otherwise.
