Presidential Self-Pardons: A Primer

Under the circumstances, I am reposting a “footnote” I authored in 2018. Without a doubt, this will be an issue in the next 10 weeks. In the ever-shifting political landscape, pundits and the rest of us have renewed interest in the concept of the presidential pardon. Constitutional scholars, law professors and political pundits all weigh in on the controversial question of whether a president can self-pardon. While hopefully the question remains academic, a brief overview of the topic may be in order for all of us.

The Constitution of the United States, Article II, Section 2, Clause 1 provides as follows:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective    Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. (emphasis added).

Given the actual wording of the Constitution, legal and political commentators for the most part agree that a president cannot issue pardons to prevent or undo their own impeachment or the impeachment of another. Likewise, the strict reading of the Constitution demonstrates that the power of the pardon applies only to “offenses against the United States”—in other words, it only applies to federal crimes and not to state crimes.

Where it gets trickier is if a president can self-pardon for a federal offense?

Hypothetically, if a president were convicted of federal fraud charges, would they be able to issue their own pardon?  The Supreme Court of the United States has not had to deal with this issue. Back in August 1974, days before President Nixon resigned, attorney Mary Lawton prepared a memo in her capacity as acting assistant general in the Department of Justice’s Office of Legal Counsel. She concluded:

“Under the fundamental rule that no one may be a judge in his own case, the President  cannot pardon himself.”

As Nixon resigned and his pardon came from his successor, Gerald Ford, her conclusion was not challenged.

Well-known legal scholars agree with Ms. Lawton’s analysis. Separate Washington Post op-eds on July 21, 2017 were written by Harvard’s Laurence Tribe, Richard Painter and Norman Eisen (chief ethics lawyers for Presidents George W. Bush and Barack Obama, respectively) and also by George Washington University’s Jonathan Turley. The Tribe et al piece reasoned as follows:

“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.”

Professor Turley and others frame the issue somewhat differently. While a president may be able to self-pardon, it is legally unsettled and political suicide.

Certain presidential musings “tweeted” in the summer of 2017 may be better understood if one’s analysis is based upon Wikipedia and dictionaries rather than constitutional inquiry. For example, the term “pardon” historically referred to Christian “indulgences” that could be bought and sold. Why not engage in self-dealing for a “Christian” executive’s indulgences? Likewise, the dictionary defines a “pardoner” as a “person licensed to sell (papal) pardons or indulgences.” Surely, a president could regard himself as the ultimate salesman? In another context, many English speakers use the phrase “pardon” or “pardon me” interchangeably with “sorry” when they mean to express a polite apology for a mild transgression, such as bumping into another on an elevator. There is no current indication that President Trump intends a “pardon” as his way of saying he’s “sorry” for any act or omission.

The Department of Justice maintains an Office of the Pardon Attorney. Typically this office processes and reviews the many requests for “executive clemency.” The website for the Office of Pardon Attorney contains a lengthy FAQ section about executive clemency, eligibility and procedure. Of note that there is no FAQ devoted to the topic of self-pardon!