Self-Pardons: A Response To Tribe, Painter, and Eisen

donald_trump_president-elect_portrait_croppedThis weekend my column on the Trump pardon controversy ran in the Washington Post. (Notably, while the first title referenced a President pardoning himself, the later title referenced pardoning aides which was the thrust of the column).  As I have stated in the press, I consider this one of the most difficult questions in the Constitution.  I wrote that there is nothing in the Constitution that says that a president cannot self-pardon and that this was a very close and unresolved question. The same day, a column ran that said conclusively that the self-pardon are clearly and textually barred by the Constitution. That column was written by Harvard Professor Laurence Tribe, Minnesota Professor Richard Painter, and Brookings Institution fellow Norman Eisen.   I must respectfully disagree despite my respect for the prior work of all three of these men. While I believe that it would have been better for the Framers to expressly bar self-pardons, they did not do so. What is left is a difficult interpretive question that is not answered by the arguments made in the column. Indeed, some of the arguments are challengeable on either a historical or legal basis.  This is an issue that could easily go either way in the courts.  In the meantime, President Trump this morning fueled greater speculation with a tweet referring to his “complete power to pardon.”

First, it is important to start with what virtually all constitutional scholars agree upon: a presidential self-pardon would be an ignoble act even if it is deemed constitutional.  Moreover, it is also clear that courts would be reluctant to review such a decision since the Supreme Court has long viewed pardons are an unfettered and political question.  However, it is possible that a federal prosecutor could seek to bring a charge and force a court to rule on a motion to quash an indictment based on a prior self-pardon.  Absent such a criminal charge, a judicial review of the decision might be difficult. If so, Trump could pardon himself and others with a fair certainty that the issue would not be raised — or at least resolved — during his term.

My view is that the Constitution does not clearly limit the power of pardons beyond its use with regard to impeachment. That does not mean that there is not a good-faith interpretation of the text that would bar self-dealing.  However, the text of the Constitution remains the most important determinant in such interpretations and we should not lightly read in exceptions from constitutional protections or powers.

Article II, Section 2, of the Constitution, states the pardon power as allowing a president to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  There is no language specifying who may or may not be the subject of a pardon. The President is simply given the power to pardon any federal crime.

The authors however insist that

“The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.”

The second point is equally dubious as support for a bar on self-pardons.  The authors are referring to Article I, Section 3:

Judgment in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

This provision refers to anyone who is impeached and says that the impeachment does not alter their status with regard to any possible prosecution.  Thus, presumably under this same argument, a president’s pardoning of any federal official or judge would “make no sense” since they are all supposed to be able to be eligible for prosecution.  The interpretation would not only insert a limitation on self-pardons but any pardons of government officials.

The fact is that the Constitution is silent on the issue — raising the propriety of reading into the language a limitation not in the text and not clearly mandated by the legislative history.

The records of the Constitutional Convention are relatively bare of discussion of the pardon authority, though some discussion did occur. One of the most intriguing was James Wilson’s respond to Edmund Randolph’s suggestion to bar presidential pardons in treason cases. Wilson opposed the proposal and noted that if the President “himself be a party to the guilt he can be impeached and prosecuted.” 2 Records of the Federal Convention of 1787, at 626 (Max Farrand ed., 1937).  That would obviously assume that either a president did not have the power to self-pardon or did not do so.

225px-richard_nixonThe authors then assert a couple of historical and policy arguments. They state, for example, that “[f]our days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.”  However, there was actually a division of opinion among lawyers with some advising Nixon that he had such authority.  Mary Lawton’s opinion is a brief and largely conclusory opinion on the issue.  Nixon was given various options, including a self-pardon, covered in a memorandum by Nixon’s lawyer, J. Fred Buzhardt. Neither side could claim a dispositive source for their conclusions.

They also claim

“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.”

Sir_Anthony_Van_Dyck_-_Charles_I_(1600-49)_-_Google_Art_ProjectAgain, this argument is rather underwhelming.  The King of England was protected by an absolute rule of immunity: “the King can do no wrong.”  There would be no need for a pardon of the King in a system where the King could not be charged for much of this history.  Moreover, when Kings were deposed, it was not a matter of litigation but revolution.  It would be rather precious for a deposed James I to claim that he could remain by pardoning himself after his overthrow.  When a sovereign is facing the “chopping block” it is not over some element of the criminal code but claims of illegitimacy.  Even Charles I executed for treason would not have been able to pardon his way out of his beheading by his irate protestant subjects.

Things get even more extenuated by the next example of historical subject for a ban on self-pardons:

“We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.”

The comparison of a pardon with religious atonement is a bit too clever by half.  The Pope was carrying out a sacrament that requires a priest.

Leviticus 19: 20-22: A man who committed adultery had to bring a guilt offering for himself to the door of the tent of meeting (holy place where the ark of the covenant, which contained God’s true presence was kept).  But then it adds “And the priest shall make atonement for him …before the Lord for his sin…and the sin which he has committed shall be forgiven.”

Yes, it is true that atonement involves a second person but that is where the analogy ends.  A pardon is actually not an atonement or even forgiveness. It is an act that bars punishment. It does not excuse the underlying crime.

The primary rationale for barring self-pardons is the problem of “self-dealing” and the long-standing rule that no one should be the judge of their own case.  Once the earlier arguments are stripped away, that is the heart of the author’s claims to have a dispositive answer to the question.  It is not a frivolous argument and one worth serious consideration.

“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.”

Of course a number of distinctions could be drawn.  First, a president is not acting in a true judicial but rather a political capacity.  His actions are extrajudicial.  Second, there are a host of ways that presidents engage in self-dealing.  Presidents have long engaged in nepotism, including both Presidents Trump and Clinton.

Philip_Dawe_(attributed),_The_Bostonians_Paying_the_Excise-man,_or_Tarring_and_Feathering_(1774)_-_02Third, the denial of the right of pardon to the president means that he is the only person who is not entitled to this protection since no one else is qualified to exercise the power.  This raises, at least tangentially, the necessity doctrine where all of the judges who have jurisdiction are somehow disqualified from the case because they have an interest in the outcome.  In such cases, the disqualification rule is set aside  to avoid a denial of justice. Evans v. Gore, 253 U.S. 245, 247– 48 (1920).  A president could find himself the subject of an abusive investigation by opponents and consider a self-pardon just.  Yet, he may not want to be forced to resign to benefit from this protection.  A president could also find himself the subject of a campaign by a successor that pledges to charge him and others in his Administration. We have had such periods like the lethal fight between Federalists and Jeffersonians.  I still believe that a self-pardon would be ignoble and wrong, but the law recognizes that disqualification rules are sometimes relaxed when the rule would exempt someone from a protection under the law.

Finally, and most importantly, the overwhelming opposition for self-dealing does not mean that we can simply graft it on to the language of the Constitution without an amendment.  The Framers could have easily excluded presidents and did not.  There are arguments in favor of extending the power to all citizens without exception.  I would prefer a ban on self-pardons but I am skeptical of arguments that “principles of natural law” can be read into clear textual language to exclude individuals or classes of people from constitutional protections.

The clarity that the authors find Constitution is equaled by their clear feelings about this President.

“President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.

But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.”

I certainly would not fault the authors for their feelings of clarity with regard to Trump but the suggestion of a clear exclusion of presidents from the benefits of the pardon clause is difficult to discern in its language or history.