The Arguments Against a Presidential Self Pardon
By: Liz Vincento
Tags: President Trump, United States, Politics, Presidential Pardon, News

The Arguments Against a Presidential Self Pardon

As President Trump explores options for pardoning himself and his family, legal scholars face the unanswered question of whether a president can pardon oneself.

Near the end of each presidential term, presidents tend to roll out a number of pardons, saving their most “controversial” picks for the end of their presidency. Donald Trump is no exception.

On November 25th, Trump pardoned Michael Flynn, former national security advisor to the Trump administration who pleaded guilty in 2017 to lying to FBI agents about conversations with Russia’s former ambassador, Sergey Kislyak. In the next coming weeks, Trump is expected to issue a series of new pardons including his former campaign chairman, Paul Manafort, who has been imprisoned for financial crimes as part of the Russia investigation, and campaign advisors, George Papadopoulos and Rick Gates who pleaded guilty to lying to the FBI.

In addition, there is talk that the President is considering granting preemptive, blanket pardons to his children as well as himself, acts of which legal scholars have debated the constitutionality.

Article II, Section 2, Clause 1 of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Unfortunately for us, the Framers did little to nothing to explain the parameters of this grant of power and clarify whether the president may pardon himself for federal crimes.

In the face of ambiguity, legal scholars look to the text, history, context, and precedent to resolve issues of interpretation.

As far as preemptive pardons, the answer is slightly more clear that pardoning oneself. Donald Trump certainly has broad authority in determining who and for which federal crimes he may pardon. His children are no exception. However, future crimes may be up for debate.

There is precedent for a president granting a pardon for future crimes. Gerald Ford pardoned 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 January 20, 1969 through August 9, 1974.” However, even this preemptive pardon was not absolute. It did render Nixon above the law into perpetuity, but rather only from 1969 to 1974. It is unclear whether Trump would impose similar limits on any preemptive pardons he has issued. Assuming he does, precedent would suggest that action is within the bounds of the Constitution.

The question of whether Trump may pardon himself, however, is far less settled. The fact that the Constitution does not give us an answer, is probably less of an oversignt and likely more a result of the Framers’ huge faith in voters. The will of the people was intended to serve as a giant constitutional check on our political leaders. The Framers likely would have found it inconceivable that the voters would elect a president who would think about pardoning themselves, especially given their monarchical history.

Yet Donald Trump believes he has the absolute power to pardon.

Tweet by @ realDonaldTrump

Trump is President until January’s inauguration. Until then, he may attempt to self-pardon which would likely end up in court to determine whether such action is constitutional. All in all, the answer is likely no.

Some legal scholars have looked to the text of the pardon power to reach this conclusion. As explained by J. Michael Luttig, the word “grant,” as used in the pardon power clause and elsewhere in the Constitution, and as understood at the time of the writing, means to gift, bestow, or transfer from one person to another, but not to oneself.

The “take care” clause of the Constitution also suggests that a president may not pardon himself. Under Article II, the president must “take care that the laws be faithfully executed.” Arguably, it is irreconcilable for a president to take care that the laws be faithfully executed, while simultaneously placing himself above the law.

The United States Department of Justice has also weighed in on the issue, finding that a president may not pardon himself, “under the fundamental rule that no one may be a judge in his own case.” However, they also noted that one way around this principle would be for a president to declare themselves temporarily unable to perform the duties of the office under the Twenty-Fifth Amendment, thereby allowing the Vice President to become Acting President and issue a pardon on the President’s behalf.

Further, a self pardon goes against all separation of powers norms. The words “separation of powers” appears no where in the Constitution itself. Instead, it is a phrase used to describe the “checks” the Framers placed on each branch. There was a clear avoidance by the Framers to let one branch retain too much power. Each power in the Constitution was therefore accompanied by a check. For example, while President Trump may appoint ambassadors, they must be approved by the Senate. While Congress may pass legislation, it must be signed by the President and subject to challenge in the courts.

A self pardon would leave president’s virtually unchecked. A president could walk into office on day 1, issue a preemptive self pardon, and hold themselves above the law for their entire presidency and potentially beyond. This broad, absolute, and authoritative power is unequivocally beyond what the Framers had envisioned.

Ultimately, if President Trump follows through with a self pardon, a case will likely end up before the Supreme Court, with three Trump appointees hearing the case. Even with the Justices being ideologically in Trump’s favor, the Justices would have to strategically craft arguments to justify a self pardon, something they may not be wiling to do in the interest of preserving the integrity of the court. For the time being, we can only speculate on the outcome.