July 25, 2017
Associate Professor, Savannah Law School
Last Friday, the Washington Post reported that President Donald Trump has consulted his lawyers about granting pardons in the Russia investigation, including the possibility of a self-pardon. That would stand in stark contrast to the Department of Justice’s Office of Legal Counsel (OLC) determination that a president cannot pardon himself. In 1974 under Richard Nixon, OLC stated: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
Over the weekend, the pardon debate continued. President Donald Trump claimed in a Saturday morning tweet that he has “complete power to pardon” his associates and, perhaps, himself. A week earlier, on ABC’s This Week, Trump’s personal lawyers, Jay Sekulow, had refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. Sekulow walked back his previous statement on July 23, stating that “pardons are not on the table,” despite the Post reporting. Interestingly, he asserted that the idea of a presidential self-pardon is an open question that should be resolved in court.
One of the bedrock principles of our Constitution is that no one, including the President, is above the law. Supreme Court Justices from John Marshall to Neil Gorsuch have declared that we are a nation of laws and not of individual leaders. It is astonishing that Trump, six months into his term, would contemplate acts that—if upheld—would pave the way for presidential impunity.
It would be clearly dishonorable and politically disastrous for Trump to use the pardon power to short circuit legitimate investigations into the connections between his associates and Russian election interference. However, the legal questions about the scope of his power are not quite as clear.
Article II, Section 2 of the Constitution vests the president with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It is an incredibly broad grant of power. There are two universally recognized limits on the pardon power. First, the president’s pardon power is limited to federal offenses enforced by federal prosecutors. States may continue to vindicate their laws against federal officials, subject to immunity doctrines that are unrelated to pardon power and beyond this post. Second, the Constitution explicitly states pardons are ineffective against impeachment and removal from office.
It is pretty clear that the President can pardon people for criminal acts they have committed but for which have not yet been convicted, or even indicted. The Supreme Court in Ex Parte Garland, 71 U.S. 333, 380 (1866) said “the [pardon] power … extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The most infamous example was President Gerald Ford’s pardon of Richard Nixon shortly after assuming office. While there was some debate about the legality of a prospective pardon, it has been done frequently. Andrew Rudalevige does a nice job of recounting the history of high profile prospective pardons, including President George Washington’s pardons of Whiskey Rebellion leaders, President Jimmy Carter’s clemency of Vietnam draft dodgers, and President George H.W. Bush’s pardons of Iran-Contra figures. A 1995 Office of Legal Counsel opinion notes presidents throughout U.S. history “have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.” It cites a pre-Civil War attorney general opinion that described pardon power as “the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime.”
A self-pardon is a much more consequential, and legally contested, issue. Three days before Nixon resigned, OLC issued its short opinion that “[u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Many legal experts have supported that view, although the arguments as to why vary. Some argue natural law first principles such as OLC did (“no man can be a judge in his own case”). Some have argued a self-pardon would violate constitutional structure in that a self-pardon would defeat the purposes of Article I, Section 4, which expressly authorizes officeholders removed by impeachment to be subject to criminal prosecution. Others make a textual argument that the meaning of “grant…Pardons” requires two parties to the transaction: a President and a pardonee, where the pardonee cannot also be the pardoner. On the other side of the debate, there are several legal commentators who believe a self-pardon is constitutional because it is not expressly prohibited.
In any event, a self-pardon would be wholly unprecedented. For the legal question to be resolved, several recently unthinkable steps would have to take place. First, the President would have to seek to pardon himself. Second, he would have to be indicted by a federal grand jury, either during office (its own hotly contested proposition) or after he leaves office by means of impeachment or the expiration of his term. Then, the President’s move to quash the indictment on pardon grounds would present the legal question for federal courts to address on the path to final resolution by the Supreme Court.
As Chief Justice Marshall noted in Marbury v. Madison, the United States has been emphatically termed “a government of laws, and not of men.” In the absence of responsible stewardship of the rule of law by our President, we must ensure that our legal and political culture—We the People—preserve the Republic.