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01/19/2021

Presidential Self-Pardons (Again)
Michael Ramsey

Presidential self-pardons are back in the news, though it's said that President Trump isn't planning to issue one.  Dale Carpenter (SMU) says self-pardons are unconstitutional in this op-ed in the Washington Post and this post at Volokh Conspiracy.  From the former: 

The "power to grant … pardons" is a legal term of art that, in its historical context, should not include self-pardon. The notion grants the president something akin to a monarchical power, a governmental form against which the very founding of the United States was a rebellion.

The concept of the self-pardon also violates other foundational principles of the laws on which the country is based. Justice Chase wrote in Calder v. Bull (1798), "[Regarding] a law that makes a man a Judge in his own cause … [i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it." In Federalist No. 10, James Madison contended, "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.

Self-pardons are a particularly noxious form of self-dealing that undermine the rule of law itself. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States "a government of laws, and not of men." Not even a president is above the law.

William Eskridge (Yale) reaches a similar conclusion, also in the Washington Post.

Plus this interesting point from Professor Carpenter:

Pardons cannot be granted "in Cases of Impeachment." The dominant interpretation of this Impeachment Exception Clause is that it only prohibits a president from obstructing the impeachment process or shielding an impeached official from the consequences of a Senate conviction (e.g., removal from office and disqualification). . . .

Whatever the president's power to shield other impeached officials from criminal prosecution, the best reading of the Impeachment Exception Clause is that he should not be allowed to pardon himself. Here's why: The president is sui generis in our constitutional system. He is entrusted with mighty powers and unique obligations. The president "shall 'take Care that the Laws be faithfully executed." (Art. II, Sec 3) Yet impeachment calls into serious question his ability to do so.

While the executive pardon power is broad, the Impeachment Exception Clause could be understood in a correspondingly broad way to provide a check on the president's license to escape the consequences of his own lawlessness. This textual limitation on the pardon power could be interpreted as consistent with the Constitution's structure, because it would reinforce the separation of powers among the three coequal branches. It would prevent the president from avoiding a Senate trial and future ramifications in legal proceedings overseen by the judiciary.

Trump's conduct involves a "Case of Impeachment" (regardless of whether he is convicted by the Senate), and thus it would be excepted from the executive pardon power.

The issue of self-pardons has been discussed quite a bit on this blog already.  As with Congress' power to impeach and try ex-presidents, Originalism Blog bloggers are divided (indicating a close question): David Weisberg argues here that the President may pardon himself, while Andrew Hyman takes the contrary view.  My initial view is here, concluding: 

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.

Since writing that post, I've been somewhat further persuaded by the argument of Andrew Hyman and others that the word "grant" necessarily indicates two people, a grantor and a grantee (though David Weisberg argues strongly against this view).

I find an interesting parallel between this issue and the question of impeaching former Presidents.  In both cases, we confront a claim of constitutional power (by the President in one case, by Congress in the other) that is possibly, but quite disputably, conveyed by the text.  Both situations similarly involve a claim of power that does not appear to have been clearly contemplated by the framers.  Perhaps in such cases the default originalist position should be that the power be denied: no presidential self-pardons, and no ex-President impeachments.  That is, we should be cautious finding powers that don't have a clear basis in text or in the framers' contemplations, even if they have an arguable basis in text.  Of course, if the text is clear, it shouldn't matter that the framers didn't discuss or appear to contemplate a particular power.  But in close calls, perhaps caution favors the absence of power.