Below is my column in the Hill Newspaper on the continuing debate over the constitutionality of self-pardons. While I view this question as a close one, I do not agree with commentators like Brookings Fellow Norman Eisen that any claim that a president can self-pardon is “absurd.” To the contrary, I believe that Trump would have a 50-50 chance in any challenge.
Of course, the first challenge to working out the merits of such arguments would be securing judicial view. In case like Ex Parte Garland (1866), the Supreme Court has previously treated the pardon power as largely unfettered and political in natural – a power that can be used for any federal offense before, during or after a prosecution. It is not something ordinarily subject to judicial review. 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. A decision could easily go either way on this type of close and intractable question.
Here is the column:
The one thing that President Trump appears to bring to the nation is clarity where confusion once reigned. For centuries, academics have debated whether a president could give himself a pardon without resolution. However, with Trump and his research on what he had called his “complete power to pardon,” there seems to be a sudden epiphany of clarity that the Constitution bars Trump from pardoning himself.
As I have long maintained, the Constitution should bar self-pardons. The problem is that it does not — at least not expressly. Article II of the Constitution, states that a president may “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 problem is not ambiguity per se. The language is relatively clear and absolute. Nevertheless, some academics find textual support elsewhere. For example, Harvard Professor Laurence Tribe, University of Minnesota Professor Richard Painter and Brookings Fellow Norman Eisen recently wrote, “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.”
Of course, it depends on your view of what is “sensible.” A self-pardoned president can still be impeached (and indeed such a pardon be included in a count of impeachment). Moreover, the authors are referring to Article I, which says that impeached individuals “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
Yet, 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. No one has suggested that a president cannot pardon other members of his administration.
The Supreme Court stated in Schick v. Reed that “the pardoning power is an enumerated power of the Constitution and…its limitations, if any, must be found in the Constitution itself.” That does not mean that the pardon clause itself is the sole basis for interpretation but it does militate against the importation of text-altering extrinsic policies.
The records of the Constitutional Convention are relatively thin on discussion of the pardon authority. One of the most intriguing passageswas James Wilson’s response 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.”
That would obviously assume that either a president did not have the power to self-pardon or did not do so. However, once again, the same thing could be true of lower-ranked officials like Aaron Burr, who was accused of treason. No one has suggested that a president could not pardon a vice president of treason under the same logic.
The Framers were well aware of the abuse of pardons, particularly in England under King Charles II. In 1678, the Parliament moved to impeach the Earl of Danby, the lord high treasurer of England. Danby was selected because they could not impeach the King, who was accused of making deals with France.
The impeachment might have revealed bribes and secret dealings. Charles II pardoned Danby and stopped the impeachment. Parliament responded by limiting pardon power so that it could not prevent an impeachment in the future. That change was made in the 1701 Act of Settlement and imported into Article II some 88 years later.
This incident is telling in another respect. Professor Tribe and his coauthors 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.”
As indicated by the Danby incident, the king of England was viewed as beyond the reach of impeachment. Indeed, English kings enjoyed an absolute rule of immunity, hence the rule that “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. Moreover, when kings were deposed, it was not a matter of litigation but revolution.
It would be rather odd for a deposed King James I to claim that he could remain king 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. When the king’s father, Charles I, was executed for treason, he would not have been able to pardon his way out of his beheading by his irate protestant subjects.
The primary rationale for barring self-pardon is not textual or even contextual but policy. “Nemo judex in causa sua” — Latin for “no one can be a judge in his own case” — has long been a touchstone of judicial review. Once the earlier arguments are stripped away, that is the heart of the author’s claims to have a dispositive answer to the question. While President Nixon’s lawyers concluded that he could pardon himself, his Justice Department concluded that he could not based on this rule against being one’s own judge.
Of course, a number of distinctions could be drawn. First, a president is not acting in a true judicial capacity, but rather a political one. His actions are extrajudicial. Second, there are a host of ways that presidents engage in self-dealing like nepotism under the Constitution. Third, the denial of the right of pardon to the president would also mean 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 as shown by Evans v. Gore. 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. Indeed, we just had a campaign based on a campaign to “lock her up” by Trump himself. In such a circumstance, an outgoing president might issue a self-pardon as well as a pardon of aides.
Finally, and most importantly, the overwhelming opposition for self-dealing does not mean that we can simply graft it onto the language of the Constitution without an amendment. The Framers could have easily excluded presidents and did not. There are concerns raised when “principles of natural law” can be read into clear textual language to exclude individuals or classes of people from constitutional protections.
It is possible that the Framers saw a president as controlling federal prosecutions as head of the executive branch and that a self-pardon would not have been as such a great departure from that inherent power for federal enforcement. It is also possible that they never did clearly resolve this issue.
Any judicial decision could easily go either way on this type of close and intractable question. However, the well-based opposition to self-pardons should not lead to self-delusion. If President Trump were to pardon himself, he could legitimately claim to be acting within the express language of the Constitution.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.