Article II of the Constitution gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Donald Trump believes he has the power to pardon himself for whatever federal crimes he may have committed as president.
The presidential self-pardon has never been judicially tested. No president has issued a self-pardon, although there was serious consideration of it in the cases of Presidents Richard Nixon (for the Watergate scandal), George H.W. Bush (for the Iran-contra scandal), and Bill Clinton (for the Whitewater scandal). Neither has any president been criminally prosecuted.
In today’s Washington Post, I argue the Constitution does not give him the power to pardon himself. Although he has claimed such a power, and soon may purport to exercise it, the constitutional basis for it would be weak. Here’s some of the argument:
The “power to grant … pardons” is a legal term of art that, in its historical context, should not include self-pardon. The notion grants the president something akin to a monarchical power, a governmental form against which the very founding of the United States was a rebellion.
The concept of the self-pardon also violates other foundational principles of the laws on which the country is based. Justice Chase wrote in Calder v. Bull (1798), “[Regarding] a law that makes a man a Judge in his own cause … [i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” In Federalist No. 10, James Madison contended, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.
Self-pardons are a particularly noxious form of self-dealing that undermine the rule of law itself. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States “a government of laws, and not of men.” Not even a president is above the law.
These principles would apply to any attempted presidential self-pardon.
But there is a further reason to doubt the self-pardon authority in Trump’s case:
Pardons cannot be granted “in Cases of Impeachment.” The dominant interpretation of this Impeachment Exception Clause is that it only prohibits a president from obstructing the impeachment process or shielding an impeached official from the consequences of a Senate conviction (e.g., removal from office and disqualification). . . .
Whatever the president’s power to shield other impeached officials from criminal prosecution, the best reading of the Impeachment Exception Clause is that he should not be allowed to pardon himself. Here’s why: The president is sui generis in our constitutional system. He is entrusted with mighty powers and unique obligations. The president “shall ‘take Care that the Laws be faithfully executed.” (Art. II, Sec 3) Yet impeachment calls into serious question his ability to do so.
While the executive pardon power is broad, the Impeachment Exception Clause could be understood in a correspondingly broad way to provide a check on the president’s license to escape the consequences of his own lawlessness. This textual limitation on the pardon power could be interpreted as consistent with the Constitution’s structure, because it would reinforce the separation of powers among the three coequal branches. It would prevent the president from avoiding a Senate trial and future ramifications in legal proceedings overseen by the judiciary.
Trump’s conduct involves a “Case of Impeachment” (regardless of whether he is convicted by the Senate), and thus it would be excepted from the executive pardon power.
It seems unlikely this issue will be addressed in a federal court. Trump may decide, for strategic or other reasons, not to pardon himself. Whether he does or not, the Justice Department may decide, for legal or prudential reasons, not to pursue prosecution. And if Trump is prosecuted, he has possible defenses other than the self-pardon.
But if our Constitution and legal traditions are followed, he should not be allowed to plead, “I beg my pardon.”
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