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Can the President Pardon Himself?
Posted By Brian Kalt On December 14, 2008 @ 9:07 pm In Constitutional Law,Criminal Procedure,Politics | 11 Comments
Would a presidential self-pardon be valid?
My answer—no, it wouldn’t be—was first registered back in the 1900s, when I wrote my student note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons . This was the beginning of my principal scholarly focus: “weird constitutional stuff that probably won’t ever happen (but if it ever does, wow!).”
As President Bush’s term draws to a close, people are starting to ask me about self-pardons again, just as they did at the end of President Clinton’s—and just as President Nixon asked his lawyers before he resigned (they said he could self-pardon, and he contemplated it). Not that partisans ever believe it, but my answer has been the same regardless of which party the president in question belongs to.
There are good arguments on both sides of the question, and Chapter 3 of my book-in-progress (Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies) deals with them in more detail than my note, and in much more detail than this post. The chapter starts with a hypo (after which, in this post, I will sketch out the legal analysis):
The last year of his second term have been a non-stop political and media circus for President Smith. He and his top operatives have been embroiled in a complex and confusing scandal, with a seemingly endless stream of allegations of bribery, tax evasion, abuse of the power of the presidency, and, for good measure, some violence and drugs.
Smith paid a price for the scandal, to be sure, but the political backdrop—extremely intense partisan division in the country—allowed him to fight back. He consistently and strenuously maintained his own innocence and attributed the matter to the political opportunism, dishonesty, and malice of his opponents. Indeed, his most vocal critics were so shrill and hypocritical that most of Smith’s allies continued to support him.
All of this turmoil came to a head in last week’s presidential election. Unfortunately for Smith, his chosen successor, Vice President Jones, narrowly lost the election to Governor Miller. Now that the opposition controls the White House, it looks like the investigation against Smith will expand and be led by Smith’s political enemies, now wielding the substantial weapon of Miller’s presidential power. Indeed, the rumored choice to lead the prosecution, Tom Taylor, is well known both as a tough prosecutor and as a critic of President Smith’s conduct.
Smith makes a fateful decision. He pardons his aides implicated in the scandal “for any crimes they might have committed” during his two terms, and then he pardons himself using the same vague formulation. Explaining his decision on national television, he states again that he and his aides have done nothing wrong, and that he wants to spare the country the expense, distraction, and vitriol of a continued investigation led by his vindictive enemies. “For ten months these scurrilous people have paralyzed the country. We’ve been unable to work on the real problems Americans face,” he says. “It looked to me like this problem was about to get worse. Enough is enough. With this pardon, I’m taking decisive action to finally end this long national distraction.”
Smith’s opponents are enraged. They claim that the self-pardon is constitutionally invalid and they call for the investigation to continue. If Smith had resigned and let Vice President Jones pardon him, they argue, the pardon clearly would have been valid and would have avoided this legal snarl. But Smith had always maintained his innocence and refused to resign, and Jones was not entangled in the scandal at all. Jones might want to run for president again, and she clearly had no desire to compromise her future political viability by accepting the presidency for two months in exchange (seemingly) for pardoning her troubled boss. For his part, Smith did not want to take the chance that Jones would not pardon him, and he also did not want to put her into the position of having to choose.
Smith’s supporters—publicly defensive, privately gleeful—confidently assert that a president has the constitutional power to pardon himself and that Miller and Taylor should give up the case. Nobody seriously doubts that if the parties were reversed, everybody would be making the exact opposite legal arguments, and just as loudly. At any rate, it seems that the expense, distraction, and vitriol of this long national distraction are not over just yet. Smith leaves office, Miller takes over, and Taylor gets a grand jury to indict Smith. Smith cites his pardon and moves to dismiss the indictment. This case is going to the Supreme Court.
The thing about self-pardons is that there is probably no way to answer the question of whether they are valid or not, until and unless an actual president issues an actual self-pardon and has it tested in court. All I can do is lay out the things I think that court would chew on.
The main argument in favor of self-pardonability is that the Constitution gives the president a broad power to pardon and carves out some specific limits, but self-pardons aren’t one of them. The Constitution says that presidents can only pardon federal crimes, and that pardons can only affect criminal sanctions, not congressional impeachment. Another limit, implicit in the definition of a pardon, is that it can only reach past actions; pardoning someone for something he hasn’t done yet would be a suspension of the law, not a pardon. Those are the only limits, say proponents.
But that last point tees up the best textual argument against self-pardons. The pardon power only empowers the president to issue “pardons,” obviously, so we need to figure out what a “pardon” is. One can argue that a pardon is, by definition, something you give to someone else. But that’s a bit circular; a court could also say, “no they aren’t,” and thereby make it so.
There are structural arguments on both sides too. Opponents of self-pardonability can point to the limited nature of the presidency, and to the myriad constitutional prohibitions on self-dealing and self-judging. Not all of these prohibitions are explicit. The Constitution would seem, for instance, to give the vice president the power to preside over his own impeachment trial, but some people read into the Constitution an inherent prohibition on such a thing. If you have a problem with a VP presiding over his own trial, you should have an even bigger problem with self-pardons.
Proponents can respond that the pardon power is broad enough to accompany all manner of ghastly pardons. A president can pardon his co-conspirators; he can pardon his VP, step aside, and have his VP pardon him. If he can do those things, why not pardon himself? The check on all of these self-interested pardons is not to pretend that the pardon power has (awfully convenient) implicit limits. The check is impeachment, and possibly prosecution—a self-pardon, even if valid, might constitute a crime and an impeachable offense, just like one given in exchange for a bribe would be.
Those who look to original intent can support either side too. As I discussed in a post here a few days ago , when the possibility of treasonous presidents pardoning their co-conspirators came up, the response was that such presidents could be impeached and prosecuted. Surely this discussion is incompatible with the delegates understanding that the president could pardon himself. They probably didn’t think self-pardons were possible, under basic principles against self-judging. At the very least, though, they didn’t consider the possibility.
Finally, opponents would probably emphasize the general point that nobody can put himself above the law, that no one can be the judge in his own case, etc. Proponents could respond that these principles, for all of their venerability, do not rise to the level of a constitutional requirement.
The main question I have faced when I have promoted this topic—and most of my others—is, “why should we worry about this, given how unlikely it is?” (at least I think that’s what people are thinking when they roll their eyes).
For self-pardons, I have two answers. One is to say that analyzing questions like this gives us an opportunity to test our assumptions—about pardons in particular, and about constitutional interpretation in general. Plus, they’re interesting and fun to think about.
The second is that it might actually happen. My fictional hypo paints the picture I see when I envision a self-pardon; another version would involve a clearly guilty, totally shameless Blagojevich-type crook. Neither scenario is beyond the realm of imagination. The point, though, is that it is worth thinking about in advance, before the analysis gets clouded with the sort of party-line interpretations one saw in the Clinton impeachment case.
That said, there is probably nothing anyone can do to actually settle the question in advance, short of amending the Constitution. It’s hard enough to amend the Constitution to fix actual problems, though, so it is not really worth contemplating amending it to preempt this merely hypothetical one.
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URL to article: http://www.concurringopinions.com/archives/2008/12/can_the_preside.html
URLs in this post:
 Pardon Me?: The Constitutional Case Against Presidential Self-Pardons: http://ssrn.com/abstract=1312000
 a post here a few days ago: http://www.concurringopinions.com/archives/2008/12/rep_nadlers_pro.html
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