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Can the President Pardon Himself?

Recently, the question whether the President can pardon himself has been in the news.  I have always found that to be a difficult question.  But unfortunately the framing of the question these days often leads people to misunderstand the issue.

The Pardon Clause provides the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Defenders of the view that the President can pardon himself argue that there is no limitation on the pardon power in the text of the Constitution.  They further argue that the explicit exception for cases of impeachment shows that no other exceptions are allowed.

This textual argument is then contrasted with a nontextual argument against presidential self pardons.  For example, Laurence Tribe, Richard Painter and Norman Eisen argue that the traditional common law principle that no person may be a judge in their own case shows that the pardon power does not cover self pardons.  But this principle does not appear to be in the constitutional text.  So we are left with an apparent dispute between a strong (or hyper) textualism and an apparent non-textualism.

In my view, this is not really the issue.  Let’s start again.  The textual argument in favor of self pardons assumes that the pardon power means the “power to pardon any person.”  But it is not clear that it does.  If one wants to understand the pardon power, the first place to look is the pardon power under the English law that the colonists inherited and that the Framers took as the precursor to American law.

Could the King pardon himself?  That is a hard question.  On the one hand, it appears that the King was thought to be immune from legal process and therefore the power to self pardon was unnecessary.  On the other hand, perhaps the King still had this power, but it was simply unnecessary to use.  Since it is not obvious which of these understandings is correct, the pardon power is unclear.  Thus, the question isn’t one of text versus non-text, but of what the text, which was based on historical terms, meant.

Moreover, it is even possible the apparently non-textual principle “that no person may be a judge in their own case” might be relevant.  Suppose that the pardon power might have had two meanings – one where the King could self pardon and one where he could not.  In choosing between the two meanings, it is perfectly legitimate to consider a well-accepted common law principle.  Such principles were used at the time of the Framing to resolve ambiguities.  This principle may even have wider application.  If it was unclear what the pardon power meant – there were not two distinct usages, but just a lack of clarity about what the power meant as to the issue of self pardons – then it is likely that an interpretive rule also allowed a traditional principle to resolve the uncertainty.

After writing most of this post, I came upon Mike Ramsey’s post on the same issue.  I was very happy to see that Mike had a very similar take upon the matter.  It is good to see that modern originalist analysis has a core.

Reader Discussion

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on July 27, 2017 at 10:42:43 am

May the President pardon himself?

Article II §2 of the Constitution states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It also states in §3 "he shall take Care that the Laws be faithfully executed." This defines his power with respect to law. He may not make, suspend, or repeal laws, but only execute them. He is not a monarch, and it is a source of confusion to take a term out of British monarchical practice and carry it over to American constitutional practice. That change in context changes the meaning.

The Constitution also states in Article II §2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That is essentially synonymous to a right to "equal protection" of the law, which was included in the 14th Amendment.

What is a pardon, for a president? Not for a monarch, but for a president. It is simply his determination not to enforce a criminal conviction and sentencing order of a federal court. It has no meaning until after there is a conviction, because the crime is not defined until then. Nor may he issue a pardon before conviction as a way to prevent a trial. He has no power to prevent a trial, including a trial of himself, although the court may not have personal jurisdiction over him. Nor may he use it to remove personal jurisdiction from any other individual. A court has personal jurisdiction if the defendant appears in it, unless it is a special appearance.

A pardon is not a reversal of a conviction. Even after a pardon the conviction stands, and may be enforced at any time, until it is reversed. A president cannot bind his successors, any more than a monarch may. His decisions and determinations expire when he leaves office. (That includes executive orders.) So, yes, he may pardon himself.

But the pardon doesn't last forever. The conviction may be enforced when he leaves office.

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Jon Roland
on July 27, 2017 at 13:59:53 pm

Mike:

Can you respond to Mr toland's assertion that a subsequent President can "undo" a pardon, etc?

This is news to me! and it would appear to foster the potential for chaos and vindictive politics.

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gabe
on July 27, 2017 at 14:44:22 pm

Indeed, did not Gerald Ford's full pardon of Nixon occur under the assumption that it could not be undone?

And, might not have Nixon's decision to resign (if he thought he could pardon himself, wouldn't Nixon be just the one to do it?), be predicated on a full, undoable pardon by his successor? Or suggest there was even then a question as to the legality of a President pardoning himself, but not one of the undoable nature of a subsequent President's pardon?

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Paul Binotto
on July 27, 2017 at 15:03:22 pm

To understand my comment one has to understand the historical linguistic analysis I used. The concept of a pardon does not come across from a British monarchical system without changes.

The notion that a pardon is judicial, a dismissal with prejudice, is only a custom, basted on misunderstanding of the concept. In the British system the monarch is a judicial office. In the U.S. system. It is not.

Never mind what Nixon or Ford did (or later Bush). Examples of [mis]usage does not redefine the underlying concept.

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Jon Roland
on July 27, 2017 at 16:44:07 pm

I am not so certain that the Crown was considered a judicial office, at least not after the Glorious Revolution when the Crown was stripped of some prerogatives, to include dispensing power (an ability to dispense with Law). It is generally assumed that the Crown retained Executive Powers, not Legislative nor Judicial.

So there is some room for argument here, is there not?

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gabe
on July 27, 2017 at 17:01:43 pm

Very interesting, indeed; I suppose there still may be an arguable precedent established to not establish precedent, by the decisions of Presidents (both of the other party) subsequent to Ford & Bush, not to seek to undo the pardons?

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Paul Binotto
on July 28, 2017 at 09:15:28 am

For me, much is resolved by simply asking what sovereignty means in our context, and where it resides.

We have a constitution of delegated and reserved powers. What is not delegated is retained by the sovereign; that is to say, "reserved to the states respectively, or to the people." The King is us. If the Framers had meant to include the power of pardoning one's self as an attribute of holding a particular office in government, the presidency or otherwise, they would have had to have spelled it out in writing, strictly speaking. If it isn't explicitly mentioned then, it isn't there. That would be the safest principle.

This is especially so because it is so unusual. Unusual or extraordinary or controversial powers are those that are most likely to require explicit mention. This is one reason why Madison was so shocked when Hamilton argued that the power to incorporate a bank was merely implied, merely an ordinary assumed power of the government, like building post offices...

But sadly, as this last example illustrates, this form of reasoning has been ignored too often for too long. It would require a judge to draw a line between all the other times such reasoning has been rejected and this particular act, if any president should have the chutzpah to try it.

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Hans Eicholz
on July 28, 2017 at 10:23:20 am

Fair enough, although some argue that if a specific limitation is NOT mentioned then there is no limitation. I must say that it strikes me as exceedingly odd that the Framers / Founders, etc. would contemplate a situation where an executive could escape accountability via a "self-pardon" given the history of the British Crown and the Crown's unique ability to escape accountability (notwithstanding a few beheadings here and there).

BTW: Can anyone answer the question: Are pardons, as Mr Roland suggests above, revocable. I know that there are "conditional pardons", which are revocable, but i had understood that a full pardon was final.

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gabe
on July 28, 2017 at 10:47:15 am

My point was not that for a U.S. president a pardon is "revocable", because all the president can do is "suspend" execution of the sentence. It expires with his tenure in office, like executive orders.

We need to analyze constitutional provisions more rigorously, and not rely on "law office history". That does not men the Framers thought through what they were drafting. Almost certainly they didn't. But they are responsible for the words they chose.

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Jon Roland
on July 28, 2017 at 10:52:21 am

Well, I sound like a broken record, but that would be a most extraordinary power. So along the same lines, it would have to be explicitly delegated to be constitutional. The people through amendment could undo this. They can write any amendment they like, shaping the delegation of the power to pardon in any way they see fit. They could then reverse a pardon, or institute double jeopardy, as ill advised as these things would be. So right now, no, there is no power to reverse a pardon granted to someone by a president.

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Hans Eicholz
on July 28, 2017 at 11:05:55 am

It is a delegated power to execute the law, specifically the sentencing order of a court. Suspension of that power is not a delegation of a power, although in this case it is. Suspension of an execution also does not require a delegated power to resume execution, just as a president can resume execution of a statute that has been a dead letter for a century.

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Jon Roland
on July 28, 2017 at 12:13:17 pm

In 2009, the Washington Post published competing editorials regarding the president’s power to rescind a pardon.

Brian Kalt, Associate Prof at Michigan State U College of Law, argued that a president cannot rescind even the pardons he has issued himself, let alone pardons issued by a prior president.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/25/AR2009012501774.html

But George Lardner Jr., an associate at the Center for the Study of the Presidency, noted that Grant had rescinded undelivered pardons issued by the prior president, and that G.W. Bush had rescinded one of his own pardons that had not been delivered.

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302581.html

Neither party argued that a president could rescind a pardon that had been delivered and accepted.

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nobody.really
on July 28, 2017 at 13:38:54 pm

Very interesting!

Can't you just hear it, if Trump were to pardon himself:

Trump: "President Trump I hereby deliver to you your pardon".
Trump: "Thank you, President Trump, I hereby, accept your pardon, you will pardon me if I do not shake your hand"
Trump: "Yes, of course, if you will pardon me for talking to myself"

Later that day on Trump Twitter: #PardonedandGreatAgain, "Pardon the interruption of your regularly scheduled Presidential Twitter to bring you this important twitter from your President. I change my mind, I hereby rescind my pardon of myself, as I no longer feel worthy" #JustKiddingandStillGreat

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Paul Binotto
on July 28, 2017 at 14:12:16 pm

Well, I can't buy the assertion that a Pardon, a constitutionally granted / recognized and sanctioned POWER is akin to an Executive Order which in its current manifestation is nowhere to be found in the Constitution.

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gabe
on July 28, 2017 at 14:49:49 pm

The authority for executive orders lies in the authority to supervise subordinates. Executive orders are directives to subordinates, and only to subordinates (which may include contractors). They do not apply to people generally.

The basic rule is that directives to subordinates expire when the supervisor leaves office. Otherwise the departure from office would be incomplete.

The question is whether the pardon power is a judicial power to rule that a conviction is dismissed with prejudice. It could be so interpreted (which many seem to want to do), but it is not inherent in the word "pardon", translated from British monarchical practice to a constitutional president, who is not a monarch.

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Jon Roland
on July 28, 2017 at 17:28:39 pm

nobody:

Thanks, brudda!

THAT does seem to make sense - otherwise we are in "banana republic land" - "Not that there is anything wrong with that comes the reply from the "show all about nothing."

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gabe
on July 28, 2017 at 17:30:38 pm

Of course that assumes that there is (or has been) something done that requires a pardon.
Then again, and I suspect that nobody.really will love this, this must mean that The Trumpster is *unpardonable*.

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gabe
on July 28, 2017 at 17:43:02 pm

Ha - yes. But everyone knows, the whole country but the President is "assumed to be innocent until proven guilty". For Trump, it ends at "assumed to be".... of course for HRC, it may be, "is assumed innocent even when proven guilty..."?
;-)

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Paul Binotto

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