If the current president has proved anything, it’s that there’s a first time for everything.
- By Brian KaltBrian Kalt is a professor and the Harold Norris faculty scholar at Michigan State University College of Law. He is the author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.
With the appointment of Robert Mueller as a special counsel, the chatter about President Donald Trump’s impeachment has started to migrate from the purely hypothetical to the realm of potential practical reality. All citizens have a duty to stay informed during such a moment. But legal and political experts have the added responsibility of anticipating the many constitutional dilemmas that loom on the horizon. Donald Trump is an unprecedented president in many ways, and there is good reason to think any early departure of his from office would be unprecedented as well.
Consider the following situation. Whether or not presidents can be prosecuted while in office (no one knows for sure), the law is clear that they can be prosecuted after they have left. That makes it conceivable that President Trump, if he perceives that a team of prosecutors is closing in on him, could attempt to solve his problem by simply pardoning himself.
I have been writing about presidential self-pardons for years. My position has always been that they would be legally invalid. I have also believed that a self-pardon is unlikely to ever happen because there are too many incentives weighing against it. But I am not sure that applies to Trump, who has proved he has a high tolerance for personal risk and a taste for attempting the never-before attempted.
So what would happen if Trump attempted a self-pardon? First, some pardon fundamentals: Article II, Section 2, Clause 1 of the U.S. Constitution gives the president the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Pardons thus can only cover federal criminal offenses and cannot thwart an impeachment (which technically is not a criminal prosecution anyway).
A person can be pardoned before being convicted and even before being charged with anything. The pardon need not specify what offenses are covered. President Richard Nixon’s case exemplifies this breadth; Nixon had not been indicted, but President Gerald Ford pardoned him preemptively for every federal offense he had “committed or may have committed” while in office.
No president has ever tried to pardon himself, let alone been prosecuted after trying to pardon himself, so no court has had a chance to rule on the validity of self-pardons. Nixon considered pardoning himself just before he resigned. His lawyer advised him that he had the power, but Nixon decided against it. President Bill Clinton rendered the issue moot by reaching a settlement with his special prosecutor the day before he left office (and pardoned 140 people other than himself).
If a court ever did consider the issue, the decision could go either way because there are reasonable arguments on both sides. The president (or ex-president by the time he would be prosecuted) would have a very simple case that his self-pardon was valid: There is nothing in the Constitution that explicitly forbids it.
The prosecutor’s argument, while much more complicated, is a stronger one. First, a textual argument: The word “pardon” means something inherently bilateral, something that a sovereign bestows upon a subject. Consider more colloquially that you can beg someone else’s pardon, but you never seek or receive one from yourself. While there is admittedly no explicit limitation on self-pardons, there is no need for one, because a self-pardon is by definition not a “pardon.” Other examples show that the pardon power is subject to inherent limitations like this. For instance, the law is clear that a pardon cannot be prospective — it can only reach offenses committed before the pardon is issued — but that limit is not spelled out in the Constitution either. It is implicit in the definition of a “pardon” as opposed to a suspension of the law.
The prosecutor can also appeal to the venerable maxim that no one may be the judge in his own case. If a federal criminal defendant feels unjustly accused, he must convince one of the following to back him: the U.S. attorney (who can drop the prosecution), a majority of the grand jury (which can refuse to indict), the judge (who can dismiss the case), any member of the trial jury (which can fail to unanimously convict), or the president (who can pardon). But people cannot prosecute, judge, or sit on juries in their own cases. Like a judge who would have to submit to the authority of another judge if he were being prosecuted, a president must seek a pardon from his successor.
The Constitution provides an interesting analogy. It empowers the vice president to preside over the Senate, with one explicit exception: When the Senate is holding the impeachment trial of a president, the chief justice presides. So who presides over the impeachment trial of a vice president? Following the logic of the president’s “it doesn’t say I can’t” self-pardon argument, if a vice president is impeached, he would preside over his own trial. Following the prosecutor’s self-pardon argument that one cannot be the judge in his own case produces the more compelling conclusion that the vice president would have to step aside.
The prosecutor has historical evidence as well. James Madison’s notes of the debates at the Constitutional Convention in 1787 record Edmund Randolph proposing that the pardon power not extend to treason. “The President may himself be guilty,” Randolph worried. “The Traytors may be his own instruments.” James Wilson responded that if the president “be himself a party to the guilt he can be impeached and prosecuted.” Wilson’s view carried the day, and no exception for treason was carved out. But what about self-pardons? They never came up, which is a very telling omission in a discussion about criminal presidents abusing the pardon power. If anyone had thought that self-pardons were possible, Wilson’s argument would not have persuaded them. It apparently went without saying — literally — that self-pardons are not possible.
Besides these legal arguments against self-pardons, there are also some practical reasons why a president would not want to pardon himself even if he thought he could. The most important is that it would look so craven and corrupt that it would greatly weaken the president’s political position with all but his most die-hard supporters. If he were facing impeachment, it would increase his chances of being removed from office. If there were an election anytime soon, he and his party could pay a tremendous price.
These political reasons are important because they speak to the very reason that the framers of the Constitution gave the president the pardon power: He is politically accountable. That is why certain political norms have come to govern the use of pardons. While presidents do still have the pardon power even when they are lame ducks, or are terribly unpopular, or are facing imminent removal, using the power in an aggressively self-serving way at such times has been rare and, when done, extremely controversial.
But President Trump has shown many times, in many ways, that he is not particularly interested in convention. No president in recent memory has been as likely to answer the establishment’s gasps (“You can’t do that!”) with defiance (“I just did!”). As such, if push comes to shove — if he ever fears being prosecuted and he is on his way out of office — it is easy to imagine President Trump giving self-pardoning a try. There is no precedent that says he cannot pardon himself and a decent legal argument that says he can.
One final thing might give him pause: A self-pardon might itself be a crime. By analogy, if a president agreed to veto legislation in exchange for a bribe, the veto would be valid, but the bribe would be a felony. Depending on the circumstances, a self-pardon might similarly be valid in its function as a pardon but felonious as an obstruction of justice. Since a pardon can only cover past actions, moreover a criminal self-pardon could not cover itself. A president might still find it worthwhile to trade a raft of criminal charges for a single count of obstruction of justice. But this adds one more item to the list of reasons not to self-pardon.
There are two questions on the table. First, might Trump pardon himself? It is far too early to speculate about him facing criminal liability, but he certainly acts like someone who wouldn’t hesitate to deliver himself such a plum.
Second, if Trump did it, what would happen? This question is easier to answer. If he weren’t already on his way out of office, a self-pardon would bring nearer that day. Any prosecutor who was already pursuing him would not roll over and assume that the self-pardon was valid. Instead, the prosecutor would press forward and force the courts — and surely the Supreme Court, eventually — to decide the issue. The court could potentially rule either way. But one would hope it would rule in favor of justice and the rule of law and not in favor of unaccountable presidential plunder.
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