Conservative radio host and litigator Mark Levin argued this week that former President Donald Trump can pardon himself from state charges if he wins the presidency, under existing Department of Justice policy and the U.S. Constitution’s Supremacy Clause.
Levin has outlined his argument several times on the Mark Levin Show. Conventional wisdom holds that the president’s pardon power does not extend to the state level. But Levin argues that unique circumstances allow a president to pardon himself.
The argument has several components. First, Levin notes that the existing Department of Justice policy against indicting a sitting president is partly explained by the idea that mounting a criminal defense would prevent a president from performing his or her duties.
Second, Levin argues that the same reasoning ought to apply to state indictments of a sitting president, because they could likewise distract the president — and because, in theory, they could be brought by any elected prosecutor in any jurisdiction. It cannot be, Levin argues, that the reasoning for the policy against indicting a sitting president in federal court would not also apply to a state court, where filing indictments is much easier in certain jurisdictions and is often driven by political considerations.
Finally, Levin argues that since a president can arguably pardon himself from federal crimes — a somewhat controversial, but accepted, view — the U.S. Constitution’s Supremacy Clause should override state law on pardons as well, for the reasons above.
As Breitbart News has noted, Georgia has a system that would make it very difficult for Trump to obtain a pardon, and a “pardon-proof” majority in the state legislature that would prevent him from pushing for changes to the policy in the state legislature.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.