Author: Brian Kalt

11

Can the President Pardon Himself?

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.

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10

Rep. Nadler’s Proposal to Amend the President’s Pardon Power

Rep. Jerrold Nadler (D-NY) is apparently going to introduce a constitutional amendment to limit the president’s pardon power. It would prevent presidents from pardoning members of their own administrations for their official acts, and would limit the pardon power in the last months of a presidency.

Nadler is apparently worried that President Bush will do both of these things, and issue lame-duck pardons of his subordinates for their role in the administration’s controversial torture and surveillance policies. [One might wonder why Nadler didn't have anything to say about President Clinton's controversial last-day pardons of a member of his administration (Henry Cisneros), and a domestic terrorist who had enlisted Nadler's assistance in the pardon process (Susan Rosenberg of the Weather Underground). To be charitable towards Nadler, though, Rosenberg wasn't a member of the Clinton Administration, and Cisneros's criminal conduct did not arise out of his Cabinet duties, so his proposed amendment is consistent with allowing those pardons.]

To me, the most interesting thing about Nadler’s proposal is how diametrically opposed it is to the Framers’ conception of the pardon power. This is not a criticism of Nadler’s proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.

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