On 4 June 2018, President Trump, amid increasing public scrutiny stemming from Special Counsel Robert Mueller’s investigation, tweeted that he had the full and complete authority to pardon himself if he saw fit to do so:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
The claim that a president has the absolute power to pardon himself has been made with respect to past presidents as well. Indeed, numerous scholars have argued that such an action would likely be constitutional, as the power to pardon is exceptionally broad — by design.
The reason for this uncertainty is twofold. No president has ever attempted to test the legality of a self-pardon; furthermore, with only a few dozen people in the history of the United States having ever held the power of the pardon, there is limited casework to guide scholars and lawyers.
Where Does the Presidential Pardon Power Come From?
The sweeping power of the president to pardon crimes or grant clemency comes solely from a single sentence in Article II, Section 2 of the United States Constitution:
The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
As argued by Supreme Court Chief Justice William Howard Taft, “against the United States” was added “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the states.” The 1925 Supreme Court case Ex parte Grossman, authored by Taft, served to expand the powers of the presidential pardon by clarifying that offenses “against the United States” could also include contempt of court cases, essentially stating that the executive power to pardon individuals supersedes the power of the judicial branch to hold people accountable for crimes against the court.
The phrase “cases of impeachment”, most scholars argue, does not refer to a President who may become involved in impeachment proceedings. Instead, as reported by the New York Times the day before President Nixon resigned from office:
The exception means that he cannot restore the standing of a Federal officer who has been impeached and removed from his position; it does not mean that a President cannot pardon himself before his own impeachment.
Are There Limits to the Presidential Pardon Power?
Beyond the stipulation that the crime be a federal one and that the pardon is not seeking to forgive an impeachment, the Supreme Court has been extremely reticent to limit the power of the presidential pardon, and it has done so on only a few occasions.
In 1865, President Lincoln conferred a sweeping pardon to anyone who “participated in the rebellion” of the Civil War. In response, the United States Congress passed a law that attempted to limit the ability for people to use this pardon in court cases where pardoned individuals sought to have seized property returned to them. This, the court argued, was unconstitutional (in part) because it encroached on the presidential pardon power:
It is the intention of the Constitution that each of the great coordinate departments of the government—the Legislative, the Executive, and the Judicial—shall be, in its sphere, independent of the others. To the executive alone is entrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned and removes all its penal consequences. It may be granted on conditions.
It is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law.
The few times the Supreme Court has acted to limit the power of the pardon have been extremely narrow and specific. In 1877, the Court ruled that a presidential pardon could not act to restore property seized by the government that had, after its seizure, been transferred to a third party, as this would encroach on Congress’s authority over the Treasury:
However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers,-it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.
In terms of limitations, not much else is on the books.
Can a President Grant Pardons For Crimes That Have Not Been Charged or Disclosed?
A president can pardon people who have not been publicly implicated in a crime. Most scholars consider this “prospective pardon” constitutional through a 1866 Supreme Court Case titled Ex parte Garland, whose ruling states:
The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
Unlike a self-pardon, prospective pardons have actually been granted a few times. The most famous case of a prospective pardon is Gerald Ford’s sweeping pardon of Richard Nixon following his resignation over the Watergate scandal (emphasis ours):
I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.
The 1992 pardon by George H.W. Bush of five individuals implicated in the Iran-Contra affair is also considered prospective, as it covered crimes for which no charge had yet been leveled:
I, George Bush, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby grant a full, complete and unconditional pardon to Elliott Abrams, Duane R. Clarridge, Alan Fiers, Clair George, Robert C. McFarlane, and Caspar W. Weinberger for all offenses charged or prosecuted by independent counsel Lawrence E. Walsh or other members of his office, or committed by these individuals and within the jurisdiction of that office.
What Are the Arguments for the Legality of a Self-Pardon?
The argument that it would be constitutional for a president to pardon him or herself, most simply stated, is that the U.S. Constitution does not say you cannot do it. This is, of course, true — the Constitution provides but one sentence of explanation regarding the power.
There are, as well, no historical precedents nor Supreme Court rulings that have investigated this possibility either. Michael W. McConnell, Director of the Constitutional Law Center at Stanford Law School, told us that “the few cases in the U.S. Supreme Court have all been about the extent of the consequences of a pardon, rather than the occasions for its exercise.”
John Yoo, a former Deputy Assistant Attorney General in George W. Bush’s Office of Legal Counsel, argued in an October 2017 New York Times opinion piece that such an act would be constitutional, though ill-conceived:
President Trump has tweeted that he has the “complete power to pardon.” As someone who supported the broadest reading of executive power as a deputy assistant attorney general during the George W. Bush administration, I think that Mr. Trump has the Constitution about right. Article II declares that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” President Trump can clearly pardon anyone — even himself — subject to the Mueller investigation.
This view has been echoed even more enthusiastically by David B. Rivkin Jr. and Lee A. Casey, who served in the White House Counsel’s office and Justice Department in the Reagan and George H.W. Bush administrations. They argued in a Wall Street Journal opinion piece published at the same time that Trump can (and should) exercise his power to pardon himself in the Mueller probe:
Mr. Trump can end this madness by immediately issuing a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign, to anyone involved with Russian acquisition of an American uranium company during the Obama administration, and to anyone for any offense that has been investigated by Mr. Mueller’s office.
The president himself would be covered by the blanket pardon we recommend, but the pardon power does not extend to impeachment. If Congress finds evidence that he was somehow involved in collusion with Russia, the House can determine whether to begin impeachment proceedings.
Arguments Against the Legality of a Self-Pardon
The most commonly cited argument against the legality of a self-pardon is a memo written by Acting Assistant Attorney General Mary C. Lawton four days before Richard Nixon resigned from office. That memo discusses possible arguments for why a self-pardon may be illegal and offers up potential remedies in case one was granted, and now serves as the only Department of Justice guidance on the topic:
Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. 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.
While this memo does make an argument that a president cannot pardon him or herself, it is not — importantly — a Constitutional argument. Instead it cites a fundamental principle of English common law: “no-one should be a judge in his own case.” While the pardon power (and the United States Constitution more generally) was crafted in the context of English common law principles such as this, Lawton’s memo represents the executive branch’s possible interpretation of circumstances not explicitly described in the Constitution, and therefore it does not have much bearing on the actual constitutionality of a self-pardon.
Other arguments against a self-pardon’s legality surround the “except in cases of impeachment” clause of the pardon power. In a 21 July 2017 Washington Post opinion piece, Harvard Constitutional law professor Laurence Tribe and former Chief White House ethics lawyers Richard Painter and Norman Eisen argued that the impeachment clause’s inclusion makes it unlikely that framers intended that self-pardons should be legal:
The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.
The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.
Not everyone agrees with that view that the impeachment clause necessarily means a President couldn’t use a self-pardon in a way that ultimately serves to avoid an impeachment before that impeachment begins, however. Michigan State Law professor Brian Kalt described the legality of a presidential self-pardon in terms of chance, arguing to CNN it would ultimately be decided by the courts:
I have thoroughly convinced myself that any court faced with the issue should rule against self-pardons’ validity. But “should” and “would” are two different things, and it is so hard to predict just what the Supreme Court would do that I can’t say with any precision. I’ll just say that I think [the chance of the Court allowing a self-pardon to stand is] less than 50%, but not close to 0%.
Didn’t the Framers of the Constitution See This as a Potential Problem?
We know a great deal about how the president’s Constitutional powers to pardon came to be, thanks to comprehensive notes and minutes taken during the Constitutional Convention. While the topic of a self-pardon did not come up, there were heated disagreements over the breadth of pardon powers:
From the beginning, some of the framers of the U.S. Constitution were worried about the pardon power that they were giving to the president and its potential for abuse. Having just rid themselves of one king, George III, the recently independent colonials were afraid of installing another.
At the Constitutional Convention of 1787, a proposal was made — and defeated — to require the consent of the Senate for a presidential pardon, and the matter was hotly debated during the two-year ratification process that followed the submission of the constitution to the states. The Federalists ultimately won the argument — barely. The constitution was adopted and the new government was installed in 1789.
There were also efforts, ultimately defeated, to prevent the pardon from being used in cases of treason over concerns similar to the ones raised in the current debate surrounding self-pardons, as reported by BuzzFeed legal reporter Chris Geitner:
Some of the concerns regarding pardons for treason, as set forth in the records of the convention, included circumstances in which the president himself or his associates could be involved. “The President may himself be guilty. The Traytors [sic] may be his own instruments,” some argued.
The response to that argument: “If he be himself a party to the guilt he can be impeached and prosecuted.” That became the guiding principle of the pardon power: The constitutional convention’s only real exception to the president’s power to pardon federal offenses is that pardons do not extend to “cases of impeachment.”
Essentially any arguments suggesting that the pardon power is too broad were, and continue to be, countered with the the logic that abuses of pardon power would be checked by the Congress’s power to impeach.
So What Happens if Trump Pardons Himself?
Theoretically, Trump could pardon himself for all issues arising from the Mueller probe at anytime with no vetting. As reported in Bloomberg, the process need not be complicated:
P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Illinois, who runs a blog about presidential pardons, agrees. “He could write his pardon down on a napkin and sign it — that would be a pardon,” Ruckman said. Standard procedure for presidents is to let the Justice Department vet possible pardons — but that’s not required by law, and Trump ignored this step on each of his first five pardons.
If such an act is seen as an abuse of power by Congress, the House of Representatives would have the power to introduce articles of impeachment over it. The outcome of such an action is highly dependent on the political composition of Congress, however. The decision to impeach would be decided by a simple majority in the House, and the decision to convict a President and remove him from office would requires a two-thirds majority vote in the Senate.
It is also possible that the Supreme Court could take up a case that challenges this theoretical self-pardon. According to Berkeley professor of public law Jesse Choper, however, no one should hold their breath waiting for the court to decide this issue, telling us that in his personal view, “It’s pretty clear that they wouldn’t touch this with a ten-foot pole.”
His argument is that, on the one hand, the Supreme Court has been reticent to limit the presidential pardon power in the past, and that on the other hand, the legality of a self-pardon of a sitting president could be seen as a “non-justiciable political question” — a question not legally capable of being decided by the judicial branch of the United States government.
Potential Supreme Court challenges notwithstanding, there is nothing that explicitly outlaws a presidential self-pardon in the Constitution or existing case law, nor is there anything explicitly allowing one. Chief Justice Taft wrote in 1925 that “our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”
He added that any alleged abuse of this pardon power would, constitutionally, need to be resolved in Congress.
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