« Donald Mayer & Adam Sulkowski: Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty
Michael Ramsey
| Main | D.C. Circuit Finds Right to Carry Arms in Public
Michael Ramsey »

07/25/2017

Tribe versus Tushnet: Can the President Pardon Himself?
Michael Ramsey

Can the President pardon himself?  Mark Tushnet has the strict textualist's answer (part of a Vox survey of fifteen law professors; unfortunately there's a lot of hedging in the other answers):

The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

A self-pardon might well be outrageously improper (unless there was the prospect of charges brought by a rogue prosecutor, whom, for some reason, the president could not control by firing him or her), but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy.

That is, the pardon power is granted comprehensively, subject to express exceptions (only for federal offenses, and not against impeachment), and the self-pardon isn't one of the exceptions.  Expresso unis, etc.  And, I'd add, this is an issue the framers clearly could have envisioned and provided for, but didn't.  It seems that, for the textualist, Professor Tushnet has it right.  (Wish he felt this way about, well, the rest of the Constitution).

In the Washington Post, Laurence Tribe, Richard Painter and Norman Eisen take the other view: No, Trump can’t pardon himself. The Constitution tells us so.   Their principal argument is based on the "enduring principle" that no person may be a judge in their own case:

[When deciding on a pardon], the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

I'm not persuaded.  Let's assume that the principle of Bonham's case is actually part of the Constitution (even though it's not, textually speaking).  It is (if anything) a limit on judicial power.  But Tribe et al. are fundamentally mistaken in equating the pardon power with the judicial power.  The pardon power is, and was in England, an executive power.  If in fact its effects were to make the holder "a kind of super judge" (or as they say elsewhere, "essentially in the role of the judge") then it would have to be exercised according to law, as judgments are.  However, that's not how it works; the pardon power is discretionary (or prerogative, the English would say) -- a power exercised according to the executive's assessment of the policy merits and expediency, not as an implementation of standing law.  As such, common law limits on judicial power don't apply, because it simply isn't an exercise of judicial power. 

Tribe et al.'s second main argument is closer to the mark:

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.

I think this could be the basis of a tenable originalist argument.  It's not so much the absence of precedent -- that's a start, but the fact that the pardon power wasn't actually used in a particular way in pre-constitutional England does not mean it couldn't have been.  Suppose, for example, that in England the king had never used the power to pardon close family relatives.  Unless there were some evidence that people generally thought the king lacked the power to pardon close family relatives, the fact that the power was never actually exercised in this way does not show that it could not be.

There's a stronger claim in the case of the king himself, however.  In English law the king (or queen) was not subject to criminal process at all.  So the idea of a royal self-pardon against criminal process would have been nonsensical.  It's not that under English law it wouldn't have been allowed; it's that under English law the whole concept would have been incoherent.

Arguably, then, then, the pardon power by definition does not include self-pardons -- not because self-pardons are somehow nontextually excluded from it on policy grounds, but because they were never part of it in the first place.  The pardon power was the king's power to excuse someone else from the criminal process.  It had no application to the king himself, who was not subject to the criminal process in the first place.  On this view, carried over to the U.S. system, it is the President's power to excuse someone else from the criminal process.  It would take something in the constitutional text to extend it to presidential self-pardons.

So in the end my originalist answer is also a bit hedged.  It depends on how much of a textualist you are, or how much you find textual meaning in the specifics of the text's English antecedents.