This post addresses two questions. First, can the president of the United States self-pardon? Second (the really tough question), should the president be able to self-pardon. Put another way, if necessary, should we amend the Constitution to prohibit presidential self-pardons?
Does the Law Allow the President to Self-Pardon?
“The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” U.S. Const., Art. II, Sec. 2, Clause 1.
The federal Constitution provides only two limitations to the pardon power: 1) It doesn’t apply to impeachment, and 2) it doesn’t apply to state crimes. Importantly, there’s no express limitation as to whom the president may pardon, nor is there any reason to infer it. Accordingly, the first question should be easy to answer, and that answer should be that the president can self-pardon. The plain text supports this interpretation, so there’s no real argument to be made. Alas, some commentators have grasped for straws, so there’s a little more work to do.
Confusing the Branches
“Giving the president the power to be a judge in his own criminal case is inconsistent with this being a rule of law society.” Jamal Greene, Dwight Professor of Law at Columbia Law School
“Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Mary C. Lawton, Acting Assistant Attorney General, 1974
One retort involves the traditional adage, credited to Sir Edward Coke in the 17th century, that “no man should serve as judge at his own trial,” and that we should apply such adages when attempting to interpret the Constitution. This would be a mistake. First, much of the Constitution was intended as a rejection of English law, so appealing to English law as a justification for interpretation is a questionable tactic. Second, and more importantly, the adage is irrelevant. The adage isn’t a law, but rather a principle, and a really good principle at that. It’s good because of what a judge does: assess guilt and innocence after thorough fact-finding. All of that fact-finding would fall on deaf ears if the judge were the accused. However, when executing the pardon power, a president isn’t acting as a judge; the president is acting as, well, a president (i.e., a chief executive), and as such the character of the power is completely different. The pardon power isn’t an assessment of guilt or innocence, and the accompanying fact-finding isn’t nearly as involved. The court’s fact-finding is assumed accurate by the president when deciding whether to pardon. Granting a pardon is a statement of, “I don’t care whether the accused is guilty or innocent; extenuating circumstances demand exoneration anyway” (see Side Note #1 below). The adage is irrelevant.
This isn’t merely philosophical. Our legal system creates a strict barrier between the three branches of government (i.e., executive, legislative, and judicial). An adage (and the sentiment behind it) that addresses the judicial branch simply doesn’t apply to the executive branch. What’s needed is a corresponding adage such as, “No executive should be able to pardon himself,” but no such traditional adage exists.
Note well that relying on this adage shouldn’t be used as legal authority or even as a means to judge the value of the pardon. It’s merely an appeal to tradition, useful only for the purposes of inferring what the drafters of the Constitution meant when they referred to a “pardon.” Either the commentators are relying on an irrelevant adage or they’re relying on one that never actually existed. Neither can be justified as a tradition that’s useful in interpreting the word “pardon.” Instead, the clause must stand on its own, and when it does, it goes to the trouble of unambiguously providing limitations, but suspiciously neither of those limitations limit whom may be pardoned.
No King Has Ever Pardoned Himself
“I do not know of an instance in human history in which a king has pardoned himself.” Richard Painter, former chief ethics lawyer to President George W. Bush
Some commentators have noted that the King of England couldn’t pardon himself, and no king ever has, but this is also unpersuasive. The reason the king couldn’t pardon himself (traditionally) is because, by definition, the king couldn’t be guilty of a crime. Put another way, so-called “sovereign immunity” provides that the king (or queen) couldn’t violate the law because he (or she) was the legal and moral source of all law. That is not how our system works; the president is not actually above the law. There’s a certain irony to this point. The best way to keep the president from being above the law is to allow the president to appear to be above the law. However, as will be discussed below, the power to self-pardon in no way places the president above the law.
In Colloquial English, a Pardon Requires Two People
“A pardon is by its very nature when one person pardons another.” Richard Painter, former chief ethics lawyer to President George W. Bush
Even if the ordinary English definition of a word should supersede the legal meaning (it shouldn’t), people forgive themselves all the time. It’s part of the healing process. It’s ridiculous to assume that, because one wouldn’t publicly and loudly announce that they were forgiving themselves for bad acts, the plain meaning and text of the law itself should be ignored. Legal interpretation and social custom are entirely separate matters.
Some of the Founders Spoke Against It
“[The President] ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.” George Mason, June 18, 1788
It’s true that some of the very people that ratified the Constitution didn’t want a pardon power at all, but it’s also true that many did. As with all things in a democracy, the law is a product of compromise. The fact that some were reluctant to adopt the pardon power, or that some downright opposed the pardon power in any form, says nothing as to whether the pardon power became law. The fact remains that those in support of the pardon won the debate, and as expressed the pardon power clearly omits any limitation on who may be pardoned. In addition, the “father of the Constitution,” James Madison, acknowledged the danger of granting the president a pardon and responded directly to Mason’s concerns.
“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.” James Madison, June 18, 1788
In other words, the process of impeachment was designed to check the president if the pardon was ever used in an improper manner. Whether Mason, et al. were ultimately convinced is irrelevant. With that check in place, a broad pardon power was adopted by the required number of legislators and states, and it became law.
Should the Law Allow the President to Self-Pardon?
Even assuming that the law allows for a self-pardon, it doesn’t have to. The voters could demand that their legislators (state and federal) amend the Constitution to forbid it. Should they?
No, they shouldn’t.
“[Self-pardons] will be rejected by courts because they’re consistent with tyranny, not our Constitution.” Renato Mariotti, former federal prosecutor
The primary concern surrounding the self-pardon is that it would place the president “above the law,” but the self-pardon does no such thing. First, as discussed above, James Madison pointed out that the president is still subject to impeachment and (Senate) conviction, which would remove the president from office. Once out of office, the former president’s power, effective immunity to federal conviction, and ability to cover up crimes would be gone. Second, if the crime in any way whatsoever violated state law, it’d still result in criminal charges even for a sitting president. To use a crass example, if the president went on a killing spree, then received a self-pardon for all federal crimes, it would be difficult to avoid state crimes altogether. If a single killing took place on state grounds, the president would be facing state murder charges. If the weapon was procured illegally, that’s a possible felony under state law. If the crimes were planned with the help of another while on state grounds, that could be a conspiracy. The states still govern most of what we do, so it’s really hard to avoid the states altogether, and no reasonable theory prevents the states from trying and convicting the president on state grounds.
The Self-Pardon is Important
Still, the self-pardon just feels wrong, so why should we have it? Does it serve a valuable purpose?
Yes, it does.
Consider the following hypothetical. The vice-president approaches the attorney general and says, “Here’s some inside information. Do you think you could indict the president for me? The secretary of state and I are happy to serve as witnesses against him, and with his polls low right now, we could probably get a jury to convict. That would make me president, and you know, I’m going to need a vice-president.” *wink, wink*
Allowing a take-over from within the Executive Branch represents a political coup, which means we’d no longer be a democracy. That is, the election would have meant nothing, because the person we elected president would be removed by someone not us. If the self-pardon were eliminated, a culture would be established where that could become the norm. That’s why the drafters of the clause included no such limitation. They knew it would eventually devolve into chaos.
Consider next section 4 of the 25th Amendment, which provides an additional means to remove the President through the cooperation of the Executive and Legislative branches. Its existence strengthens the argument that the president is not above the law, but more importantly, illustrates that even as recently as 1967, the threat of coups is a legitimate concern. Section 4 still provides multi-layered protections to the president. The process must start with a majority of the “principal officers” of the executive branch, who must then justify their case to both houses of Congress. The president can write a letter disputing those claims, and after that, a 2/3 vote in both houses is required to remove. This is because, even when trying to give us yet another means to oust the president, the drafters were still worried about political coups. A large amount of cooperation, coupled with overwhelming support, is required to oust the president.
Being able to pardon oneself has never resulted in the hypothetical killing spree discussed above, but because of the nature of our current president, many Americans seem eager for a political coup. Which, therefore, is a credible threat? If a political coup is the only credible threat, then which is more dangerous, having the self-pardon or not?
But It Looks Bad
“That’s not what the American people, I think, would be able to stand for.” Preet Bharara, former United States Attorney for the Southern District of New York
Yes, it does look bad. It smacks of corruption or monarchy to the average American. This image exists only because the average American doesn’t understand the nuances of the issue, but there’s little chance of the average American ever will because they simply don’t care. However, that’s true of a lot of aspects of American government. The Supreme Court isn’t perfect but certainly receives far more criticism than it deserves. Nevertheless, the institution survives, and because it does, so does the American government. The institution of the president would survive as well. Substance will always outweigh image, so regardless of how bad the self-pardon looks, the fact that it’s actually an important safeguard for our democracy means it should stay. It’s important that these “constitutional scholars” spend their energy educating the public rather than riling them up.
Side Note #1: Is There an Assumption of Guilt? Must There Be an Indictment Before a Pardon Can Be Issued?
The overwhelming consensus among legal theorists is that a pardon does not assume that the person receiving the pardon was guilty. To summarize, this is because there’s significant value in receiving a pardon even if the accused is innocent. History suggests (doesn’t prove) this viewpoint. A pardon has been used by the President to avoid the inconvenience of an expected trial in the first place. Then-President Ronald Reagan pardoned former Secretary of Defense Casper Weinberger after he was indicted for his alleged role in the Iran-Contra affair, and Reagan’s own words suggested that he didn’t believe Weinberger did anything wrong. The pardon was technical in nature, not in any way an assumption of guilt by the president that issued it.
Side Note #2: Must There Be an Indictment Before a Pardon Can Be Issued?
In 1974, then-President Gerald Ford pardoned former president Richard Nixon before Nixon was even indicted for the Watergate incident. Charges need not even be brought before a pardon can be issued. All that’s required is that the allegedly criminal activity must have occurred before the pardon is issued. That is, the president can’t pardon hypothetical, future crimes.
Side Note #3: 25th Amendment, Section 3
Assume that the pardon power doesn’t include the ability to self-pardon. Section 3 of the 25th Amendment permits the president to temporarily leave office, passing the powers of the president to the vice-president. Once that happens, the vice-president clearly could pardon the president, after which the president can resume duties. Why does this obvious loophole exist? Because it isn’t a loophole. This isn’t in conflict with the pardon power because the pardon power includes the power to self-pardon, rendering the “loophole” meaningless.
Conclusion
Neither the law, nor any authority helpful in interpreting it, prohibits the presidential self-pardon, nor should it. The president remains subject to the law despite the self-pardon, and the self-pardon is yet another clever way in which the drafters of the Constitution, and its amendments, protected our democracy. It is, in fact, important. Our experience over the past 230 years supports these notions.
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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.
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