The stink from the pile of Trump’s pardons is palpable – it is the stink of corruption and abuse of power. A high percentage of Trump’s pardons have gone to those with a personal or political connection to him. Those receiving his favor include murderers, dishonest politicians, fraudsters, thieves, and liars. Still, it is widely believed that a president’s pardon power is unlimited, that he or she can pardon anyone for virtually any crime. The question of the moment, one that our nation has never had to answer, is whether a president can pardon himself.
The pardon power is a creature of the Constitution. Article II, Section 2 states that the President “shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no limitation on self-pardons here. Yet the power to pardon has been exercised by presidents over 20,000 times and never once has anyone attempted to pardon himself.
Certainly, a self-pardon has been considered. In August 1974 President Nixon met with senior staff to discuss options for concluding his presidency. White House lawyers had prepared a memo in which they advocated the legality of a self-pardon and, according to Gerald Ford who was in the meeting, Nixon believed he had that power. Nevertheless, he resigned.
The strongest argument in favor of the power to self-pardon is the simple, textual one. The Constitution mentions pardons in only one place, where it seems to give a president plenary power to pardon. In Schick v. Reed (1974), Chief Justice Burger wrote “we therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.” It is noteworthy that the Court did not say “in the clause itself.”
There are only two limitations stated in the Pardon Clause – a president may not pardon in cases of impeachment or for state crimes. This probably means that a president could not pardon himself for the crimes that are the basis of an impeachment proceeding against him. Nothing elsewhere in the Constitution expressly forbids the power to self-pardon. In such a case the rule of construction called expressio unius may apply. This rule holds that the expression of one limitation excludes any others not expressed.
But not so fast. The Schick case, still the leading case on the meaning of the pardon power, tells us that the pardon power is not quite complete and self-contained:
In light of the English common law from which such language was drawn the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution . . . .
If we stop at a mere textual reading of the Pardon Clause, which the current Supreme Court might well do, we don’t reach the question of whether a self-pardon would offend the rest of the Constitution. That method of interpretation is called the structural approach.
Self-judging is a subset of self-dealing and the Constitution is full of limitations on self-dealing. Here are a few examples. A member of Congress cannot simultaneously hold another federal office and cannot resign to take a job that was created, or the pay for which was increased, during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election. A president’s salary cannot be increased without an intervening presidential election.
Perhaps more to the point is the question of who presides at an impeachment trial. When the president is tried in the Senate the chief justice presides, not the vice president who is obviously self-interested. On the one hand he has been elected on the same ticket as the president and might wish the president to be acquitted for that reason. On the other hand, the vice president would be elevated to president if the sitting president is convicted. The Constitution does not specify who would preside if the vice president were impeached but it certainly would not be the vice president himself.
But neither the textual nor the structural approach to interpreting the Pardon Clause can tell us whether there are inherent limitations in the term “pardon.” For that we have to adopt the approach called originalism, which looks at the how the Framers understood the term at the time it was used in the Constitution.
The Supreme Court has repeatedly stated that the primary source for interpreting the pardon power is the English common law known to the drafters at the time the Constitution was adopted. One should expect, then, that any limitations that existed at common law should be a part of the meaning of the term “pardon” and incorporated into the interpretation of the Pardon Clause, even though not expressed in the text of that clause. This, indeed, has happened.
The president can issue a pardon at any time after a crime is committed, even before arrest or indictment. But no pardon can issue before a crime is committed. Otherwise, it would amount to an indulgence to commit the crime and be void. Another example is found in Burdick v. United States (1915), in which the Supreme Court ruled that a pardon is only valid if accepted by the defendant. Furthermore, acceptance of the pardon conveys acceptance of guilt, much as in the common practice of plea deals. After Nixon’s resignation, President Ford gave him terms on which a pardon would be granted. One was an admission of guilt and a statement of contrition. Nixon finally said that he had been wrong in the handling of the Watergate scandal and that fair-minded people could consider his actions “intentionally self-serving and illegal.”
One common law pardon requirement has not yet been recognized by the Supreme Court, perhaps because it has never been properly raised — the requirement of specifying the crime being pardoned. We know this requirement was part of the English common law just before the Revolution because it was clearly described in Blackstone’s Commentaries, the most influential treatise on law in the 18th Century.
In practice, the rule requiring specificity is followed to this day. For example, the Justice Department maintains on its website the details and actual text of each pardon Trump has granted. Each one refers to specific crimes. The Nixon pardon in 1974 is the one significant exception. It read that Nixon was being pardoned “for all offenses . . . which he . . . has committed or may have committed or taken part in” during the period of his presidency. That pardon went unchallenged by Leon Jaworski, the Special Prosecutor at the time.
Now, imagine that Trump is about to pardon himself. He is not likely to specify what crimes he is pardoning and certainly not inclined to admit that he has actually committed a crime. Instead, he is most likely to use a self-pardon to insulate himself from further investigation and prosecution for obstruction of justice during the Mueller investigation and perhaps income tax crimes that may be revealed when his tax returns are disclosed. Suppose he issues a general pardon of himself and his immediate family for “any and all federal offenses that are alleged to have been committed by him or them at any time preceding the date of the pardon.” Who can challenge the validity of that self-pardon, including its lack of specificity, in what context and to what effect?
The validity of a self-pardon cannot be tested unless Trump asserts it as a bar to prosecution for the crimes allegedly pardoned. A political decision will have to be made by President Biden to commence a prosecution against his predecessor for federal crimes, perhaps committed while in office, and a legal decision will have to be made by the prosecutors that the arguments against the pardon are likely to prevail. These are both substantial hurdles.
Much can be said against a sitting president pursuing a criminal case against his predecessor. The objective now should not be revenge, but rather to re-establish the guardrails and norms of democracy. Our country is too polarized at this moment to absorb what would be interpreted by many as a political hit job. If Trump is to be prosecuted, let it be by the New York authorities who apparently already have him in their sights. His self-pardon would not block a state prosecution.
In England before the American Revolution there was never controversy over self-pardons because the king was thought to be above the law and incapable of violating it. But our Constitution rejected kings and kingly power. It just seems wrong and contrary to our sense of justice for an elected official to be able to pardon himself. We often hear that no man is above the law, but if a president can pardon himself then he is the law. The argument for commencing a prosecution against Trump, aside from bringing him to justice for his crimes, is to attack the idea of a presidential self-pardon at its first appearance so that the practice cannot take hold.
In summary, will Trump try to pardon himself? I would bet on it. He has always been a norm-buster, particularly when it benefits him directly. Will he specify what crimes he has committed and what is being pardoned? Unlikely. Will President Biden authorize a prosecution against Trump for federal crimes and attack the validity of the self-pardon? I doubt it, but it depends on what evidence is developed and whether he receives a recommendation to do so from a special prosecutor. What will the Supreme Court say about a self-pardon? I am worried about the answer to that question, but it certainly would be an opportunity for the Court to establish once and for all that this is a country of laws and not strongmen.