The Self-Pardon Question Is Coming

During the recent oral arguments in Trump v. United States, in which the former president is asking the Supreme Court to immunize him from criminal law, Justice Neil Gorsuch wondered whether the specter of prosecution might incentivize presidents to pardon themselves.

“Do you have any thoughts about that?” Gorsuch asked, and then answered: “[P]erhaps, if he feels he has to, he’ll pardon himself every … four years from now on.” Justice Samuel Alito grabbed onto the idea, posing to the Justice Department’s attorney, Michael Dreeben: If “there is no immunity from prosecution, won’t the … predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?”

Dreeben’s answer: probably not. He gestured to “adequate deterrents” like “political consequences” so that such a “dystopian regime is not going to evolve.” In his view, norms will prevent a president from attempting something so brazen.

The answer is striking, given the circumstances. The Court is forcing the country to seriously entertain the idea that a former president—if he, say, ordered the military to stage a coup, or executed his political opponents—can be forever shielded from the law. How the Court decides, and how quickly, will determine whether a president who in fact staged a coup will get away with it. But that such a president might also attempt a self-pardon? “I really doubt that,” said Drebeen, seemingly oblivious to the evolution of the dystopian situation well under way.

The Justice Department missed an opportunity to unequivocally clarify what in less upside-down times perhaps went without saying: Whether through a made-up immunity doctrine or through an attempted self-pardon, no president, no matter the mechanism, is ever above the law.

As it happens, Trump did, in fact, contemplate a self-pardon while president. While he is not the first president to have considered it, he may be the first, if reelected, to give it a try. Regardless of whether the Court throws out his immunity defense, Trump would almost certainly pull the plug on the Justice Department’s prosecution of him, and so a self-pardon might initially be unnecessary. But thereafter lay four years: plenty of time to commit plenty more crimes. As Gorsuch predicts, Trump could then pardon himself on the way out the door.

And so not unreasonably, Justice Alito pressed Dreeben: “[D]on’t you think we need to know the answer to—at least to the Justice Department’s position on that issue in order to decide this case?” Immunity is immunity, one way or another. So should he or shouldn’t he be above the law? Alito likely intends to justify his cloaking of Trump with a blanket of judicially fabricated immunity by suggesting that if he doesn’t, the president will simply find another way to do so instead, as with a self-pardon: If I don’t do it for him, he’ll try to do it himself! If the argument seems absurd, that’s because it is. The Court should not render the president a king anymore than tolerating an attempt by a president to do so himself.

That position flows from other Supreme Court rulings dating back to the earliest days of the republic. While the self-pardon question is novel, the litigated and settled constitutional provisions and principles it implicates are not. Together, they point in one direction and one direction only: Presidents cannot lawfully pardon themselves.

Assessing the constitutionality of a self-pardon starts with confronting the notion that the pardon power is “complete,” as Trump once put it. If the power is in fact as unbounded as some suggest, then the self-pardon question is settled; a limitless pardon power ostensibly permits pardoning oneself. Defenders of this take have pointed to the text of the Constitution itself: that the Pardon Clause “was intentionally made broad.” Indeed, only two limitations are explicit. Pardons extend only to “[o]ffences against the United States,” meaning state criminal offenses and civil liability are not pardonable. And pardons for “[c]ases of [i]mpeachment” are off the table.

But at least according to two centuries of federal court rulings, there are quite a few more. For instance, courts have held that a pardon is valid only if physically delivered and only if the recipient accepts it. Presidents may not pardon for civil contempt of court, nor pardon a crime before it has actually been committed. Pardons cannot expunge a conviction; cannot interfere with the vested rights of a third party; and cannot require that prisoners forfeit their constitutional rights. Pardons cannot compel the Treasury Department to disburse funds in violation of the Appropriations Clause, and the procedures by which a pardon is granted cannot violate the Due Process Clause.

None of these constraints is explicitly spelled out in the text of the Pardon Clause itself. That’s because, as the Supreme Court has explained, limitations on the pardon power may be “found in the Constitution.” That is, the president’s pardon power—like all enumerated powers—cannot be read and interpreted without consulting the rest of the document. Consider, for example, Congress’s constitutional authority to regulate interstate commerce. Imagine that Congress used that authority to ban the mailing of newspapers across state lines. It would not take long for courts to strike down the law as a violation of the First Amendment. The capacious text of the Commerce Clause does not render Congress’s otherwise broad powers to regulate commerce unfettered. The rest of the Constitution—in this case, the First Amendment—constrains it.

 Like any other power assigned to a branch of government, the power to pardon, according to the Supreme Court, cannot “offend the Constitution.” In an early example of the pardon power being construed to operate alongside the rest of the Constitution, the Court held that a pardoned Confederate could not claim the proceeds from land confiscated and sold by the federal government during the Civil War—because the proceeds had already been deposited into the U.S. Treasury. Although a pardon frees a recipient from direct punishment, “[m]oneys once in the treasury can only be withdrawn by an appropriation by law,” the Court held. In other words, the Pardon Clause could not undermine the Appropriations Clause. The decision was neither the first nor last case to delimit the reach of pardons in order to maintain the integrity of the rest of the Constitution.

If the pardon power is, then, bound by the rest of the Constitution, would a self-pardon find itself beyond those bounds? Some scholars have argued that the text of the Pardon Clause itself forbids a self-pardon: One can only “grant” something to someone else, not to oneself. A president cannot grant himself a pardon any more than relieve himself of financial debts. But beyond the clause itself, three other well-tested constitutional provisions and principles say a self-pardon would be unconstitutional.

First, the pardon power is a tool to serve the public interest, not personal interests.

In a 1927 case concerning the authority of the president to commute sentences without a prisoner’s consent, the Supreme Court explained that a “pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served.” The Court ruled in favor of the president, reasoning that the commutation served the public interest. Whether the prisoner “liked it or not, the public welfare, not his consent, determines what shall be done.” Chief Justice Howard Taft, who had recused himself from the case—he was formerly the president who had commuted the sentence in question—later commented: “The only rule he [a president] can follow is that he shall not exercise it against the public interest.”

The U.S. District Court for the District of Columbia in 1974 heard a challenge to the president’s authority to attach conditions to a commutation. President Richard Nixon, who had commuted the sentence of James Hoffa—a labor union leader who had become involved in organized crime—conditioned his commutation on the requirement that Hoffa agree to abstain from labor organization management until 1980, when he would have otherwise been released from prison. In its ruling, the Court explained that the pardon power is not “limitless.” Instead, “[t]he President, who exercises that power as the elected representative of all the People, must always exercise it in the public interest.” Assessing that the condition of the commutation met this standard, the Court upheld it.

The court in the Hoffa case focused on the conditions a president sought to place on an exercise of clemency. But the court’s exercise of judicial review over those conditions, as well as its language insisting that the president must exercise the pardon power “in the public interest,” reinforce other provisions in Article II that govern the president’s powers.

In particular, the Take Care Clause and the Oath Clause both require that the president exercise his responsibilities in the public interest: that he “take Care that the Laws be faithfully executed” and “solemnly swear” to do so. As the legal scholars Andrew Kent, Ethan Leib, and Jed Shugerman explain, the phrase “faithful execution” at the time of the Constitution’s writing meant exercising power “in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons.” A self-pardon—an attempt by the president to exempt himself from the consequences of violating the law—would hardly amount to a “faithful execution” of the law. It would instead constitute the height of self-dealing, contradicting the presidency’s public interest mandate by allowing its occupant to wield the powers of the office in service of himself.

Second, a self-pardon would violate the due process principle articulated by James Madison that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment.”

Typically, when that issue arises, it concerns conflicts of interests within the judiciary, as with judges adjudicating disputes in which their own actions are under examination. But it can apply to executive branch officials in adjudicatory roles as well. Self-pardons would constitute a novel kind of judge-and-jury conflict—but a no less problematic one.

There are few federal cases concerning self-judging. Though as the legal scholar Brian Kalt observes, “those that can be found are unanimous in their respect for the principle that no man shall be the judge in his own case.” In 1798, the Supreme Court articulated the principle forcefully: that “a law that makes a man a judge in his own cause … is against all reason and justice.” It did so also in 1955, explaining that “our system of law has always endeavored to prevent even the probability of unfairness. To this end, no man can be a judge in his own case.” In 1995, the Court referred to the principle as a “mainstay of our system of government.” And in 2009, the Court recited the principle again, that “no man is allowed to be a judge in his own cause.” Pardoning necessitates judgment; and no man, the Court has long made clear, can fairly exercise judgment over himself.

As it happens, the executive branch has also weighed in. In the terminal days of the Nixon presidency, White House Counsel J. Fred Buzhardt advised Nixon’s chief of staff, Alexander Haig, that the president could lawfully pardon himself—seemingly influenced by a study on pardons produced by an external consultant who took an unrestrained view of the power. Days later, likely after a query from Haig, the Department of Justice’s Office of Legal Counsel advised otherwise: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Nixon, of course, did not attempt to pardon himself, though it is almost certainly the case that his decision did not flow from a constrained view of presidential power. In a 1977 interview, David Frost asked Nixon whether a president, if he deemed it to be in the best interests of the nation, could do something illegal. “Well,” Nixon replied, “when the president does it … that means that it is not illegal.” “By definition—,” Frost clarified. “Exactly,” said Nixon. The exchange encapsulated the Nixonian, and now Trumpian, perspective on the presidency: that it should be more akin to a monarchy, perched above and beyond the reach of the law. Since the seventh century, English kings also enjoyed the power to pardon. And while Parliament for centuries worked to circumscribe the power, never, as far as historians can tell, were self-pardons an issue—because kings could do no wrong.

This raises a third well-tested argument against the legitimacy of a self-pardon, and one that speaks more directly to our democratic intuitions: that our presidents are not kings, despite the ambitions of some. The founding story of the nation—a revolutionary rejection of arbitrary and abusive monarchical authority—does not square well with bestowing upon a president the ability to exempt himself from the law.

From time to time, the Supreme Court has offered a reminder that we are a country of laws, not men. “No man in this country is so high that he is above the law,” the Court wrote in 1882. “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” Presumably, “all” includes the president, as Chief Justice John Roberts more recently spelled out when striking down the claim that a president enjoys some kind of absolute immunity from, in this case, state criminal subpoenas seeking private papers. While “a king is born to power and can ‘do no wrong’... [t]he President, by contrast, is ‘of the people’ and subject to the law.”

It strains credulity to imagine the framers snuck into the Constitution a king-like escape hatch from the law. What little we do know suggests that self-pardons were not evidently contemplated at the Constitutional Convention, and that it was assumed presidents would face trial and punishment if they committed crimes, like anyone else. George Mason warned that a president might pardon co-conspirators to “prevent the discovery of his own guilt”—exactly what Nixon maneuvered to do during Watergate, and what Trump appeared to have done during the Mueller investigation when dangling a pardon for Paul Manafort, his jailed campaign manager. James Iredell conceded the possibility, and then dismissed it as too unlikely: No president would dare risk “the damnation of his fame to all future ages.” And even if a president were to act so corruptly, Iredell argued, “he is not exempt from a trial.”

In fact, the framers finalized constitutional language that was not entirely silent on the matter. The president could always be impeached for wrongdoing; and an impeached official “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” That is, the framers were clear that impeached presidents would still be subject to the criminal justice system once they left office if they had run afoul of the law, including “Punishment”—the piece of the puzzle a self-pardon would nullify. It would be an odd proposition to suggest the framers intended the contradiction. In assuaging his fellow citizens that presidents would bear no resemblance to kings, Alexander Hamilton made explicit that they would be “liable to prosecution and punishment in the ordinary course of law.” In the wake of Jan. 6, then-Senate Majority Leader Mitch McConnell would echo this bit of the Constitution: that “impeachment was never meant to be the final forum for American justice,” and that Trump was not immune from “criminal justice.” A self-pardon, of course, if exercised, would grant immunity.

Like most of our constitutional questions, searching the minds of the framers and parsing specific words gets us only so far. At some point, the analysis must also consider the stakes. A self-pardon not only would constitute a broadside against the Constitution but also would sharpen a dangerous vision for the country’s future. Stripped of its demagogic distractions, authoritarianism is at root the placing of powerful people above the law. It is a form of government where those vested with public powers twist them into tools of private gain. The use of the pardon power to further such an obvious and unaccountable form of self-interest—the placing of oneself beyond the reach of the law—would amount to a nakedly authoritarian act.

Retrospectively, Dreeben’s thesis appears sound: Some kind of norm—adherence to democratic principles, or just a calculation of political consequences—has prevented presidents, who have often otherwise maintained their near-absolute power to pardon, from pardoning themselves. But prospectively, the thesis appears antiquated—and dangerous. In an era of ascendent authoritarianism, norms are changing, and quickly. Should the self-pardon question ever come before a court (and indeed, there are ample procedural mechanisms that can put the legality of a pardon in front of one), the answer ought to be clear. But given the stakes, the safest strategy would be for the rest of us, as citizens and voters, to prevent any candidate who would force the question from obtaining power in the first place.