Pardon Me: Can The President Pardon Himself?

A blogger these days just can't plan.  When you think that you have your next blog posting all worked out, you are suddenly faced with the dreaded OBE: Overtaken By Events.  That's what happened Thursday night at about 9:15 when the Washington Post broke the story that Trump's lawyers are looking into the presidential power to grant pardons, including pardoning himself. 

This post will focus on the question most people are asking: can the President pardon himself?  There are other, interesting issues: Prof. Steve Vladeck covers this and four other pardon-related issues briefly and clearly in this piece.  A short, worthwhile read.

Let's start with the Constitution.  Article II, Section 2 provides:

"The President...shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"


Just looking at the text, there seems to be nothing that would prevent the President from pardoning himself.  And because no President has ever tried (even Nixon), it has never been litigated so there are no precedents to refer to.  But as always, there's more.  In a memo from the Justice Department's Office of Legal Counsel (OLC), written just three days before Nixon resigned, the answer was "No".  (My source for the memo was this Washington Post op-ed).  

Why this answer?  

Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative."  OLC Memo at 1.  And when you think about it, that makes sense: it violates basic norms of fairness and justice to have someone be the judge in their own case.  Also, think about what a pardon is.  If I have the ability to pardon you, I am in a position to judge your conduct or what sentence you received after conviction.  I am making a decision about you, not about me  The concept of "pardon" is bilateral, like the concept of "donate".  I can no more "pardon" myself than I can "donate" a kidney to myself: self-pardons just make no sense; it just wouldn't be a pardon.  (See more of the article that was my source for this analogy and some of what follows here).


But if all this strikes you as mostly semantics with a touch of basic fairness norms, it is.  As Prof. Kalt points out at the link above, many people think the President would not pardon himself because only guilty people are pardoned: accepting a pardon is an admission of guilt.  Not so: while most pardons are given to forgive the guilty, they are also used to exonerate the innocent.  Shameless though we might think it may be, the President could say his pardon fits under the latter category.  And you don't have to be charged or convicted before being pardoned.  President Ford's pardon of President Nixon was preemptive: Nixon was not even indicted.  In short, there is nothing--legally, as of now--to stop the President from trying to pardon himself, and his lawyers would argue that the Constitution, other than state proceedings and Congressional impeachments, allows him free reign to grant pardons, even to himself.

This clearly (well, I think clearly) would bring the entire system of checks and balances into play.  Assuming the President would attempt this admittedly shameless move of pardoning himself, the House could impeach (remember, pardons cannot apply to impeachments, or as Jeremy Bash, former Chief of Staff to the CIA said on MSNBC, "pardon beats indictment, but impeachment beats a pardon").  Also, the act of self-pardoning could itself be a crime, making him susceptible to a prosecution after leaving office for obstruction of justice.  Thus the pardon itself can be absolute; how the pardon power is exercised is another matter (think of a pardon in exchange for money).

And if you want a political firestorm, consider one scenario in the OLC memo: Section 3 of the Twenty-Fifth Amendment.  If the President declared that he was temporarily unfit to perform the duties of his office, the Vice President would become Acting President and thus could pardon the President, who thereafter could resume the office of President or resign.  

So because there are no legal precedents prohibiting the President from pardoning himself, only semantics and norms and the potential risks involved, yes, the President can roll the dice and try to pardon himself.  Politics and what would truly be a constitutional crisis would ensue.  As interesting as this might be, let's pray it never happens.

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    1. I thought I would add a couple of more thoughts on the issue of whether the President could pardon himself.

      As you might imagine, this is not a cut-and-dry topic. Some of it even turns on what you mean by "can". If you mean the President "can" pardon himself simply because there is no law or Supreme Court case that says he can't, you're probably right. If you think "can" has a more expansive definition, namely that his ability to pardon himself turns on broad political norms and the intent of the framers of the Constitution as it involves pardons and the structure of the government (as reflected in the minutes of the Constitutional Convention), the answer would probably be “No” in the sense that the notion of the President pardoning himself was not even in the Framers’ minds. (The article from Prof. Kalt mentioned in the post points to the fact that the Framers wanted to exempt treason from the pardon power, but James Wilson convinced them otherwise, because he said the president could be impeached and prosecuted, which would never have flown as an argument if he could pardon himself).

      And as I pointed out, self-pardon does not make legal or even linguistic sense (but again, keeping to these norms is the key: if one does not, well, who knows?) Noah Feldman (professor of law at Harvard) points out,
      rightly I think, https://www.bloomberg.com/view/articles/2017-07-21/trump-s-pardoning-himself-would-trash-constitution, that for President Trump to attempt a self-pardon would trash the Constitution. He makes a concise historical argument (starting in England in 1311) but more to the point he says that no court would uphold it: “This isn’t a normal legal problem for courts to resolve by weighing plausible, competing arguments. It’s the whole ball of wax: the survival of constitutional government. The courts will treat it as such. If the president uses the pardon power to end investigations against his cronies and protect himself, that’s a political problem that would call for a political solution, namely impeachment. But if the president were to try to pardon himself, the courts would simply rule that the pardon was ineffectual. Once out of office, by impeachment or by the end of his term, the president would be subject to criminal charges. It won’t come to that, I believe. The Republic isn’t about to turn into a dictatorship. To make sure things stay that way, no one should talk as though self-pardon is a realistic possibility. It isn’t -- not in a functioning democracy with the rule of law.”

      So, can the President pardon himself in the first instance? Technically, yes. Would it last through a court challenge? I think—and hope—not. Otherwise, as Feldman states, we have no rule of law.





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