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Epstein on Self Pardons

In the Wall Street Journal, eminent law professor Richard Epstein, who is certainly not a Trump partisan, argues that the President can pardon himself. While Epstein strongly believes that the President can pardon himself, I am not sure what the answer is – but based on the existing evidence, I lean towards the view that the President cannot do so. Yet, I do agree with Epstein that an attempted self pardon by President Trump (or any President) – whether it turns out to be deemed legal or not by the courts – is not an impeachable offense.

Epstein’s first and primary argument is textual. The Pardon Clause provides the President with the power to “grant . . . pardons for offenses against the United States.” It does not say anything about the President not being able to pardon himself. That is a powerful argument, and were the language entirely clear, I would agree with Epstein that that settles the matter. But the language is not clear.

It is not clear what the power to pardon means. One possibility is that it simply means the power to grant anyone absolution from the effects of being convicted of a crime. But another possibility is that the power refers to the King of England’s power under English law. And it is possible that King’s power did not extend to pardoning himself.

We do not have direct evidence on the King’s self pardon power. But no King ever pardoned himself. The reason appears to be that, under English law, the King could not be touched by legal process and therefore he did not need the power to pardon himself. But simply because he did not need the power (although the President might) does not mean that the King had the power. So the question is uncertain.

To my mind, this creates something of an ambiguity about the meaning of the power to pardon. It could have included self pardons, but it might not have. Since the term is ambiguous, Epstein’s textual argument does not answer the question.

How, then, should we resolve this ambiguity? One way is to consider the principles of the law that existed at the time. One such principle was that a person should not be a judge in his own case.  If that is the case, then the President does not have the power to pardon himself, because it would involve judging his own case.

Epstein’s acknowledges this argument, but responds that the power to pardon does not involve judging. True enough, but not really that significant. Pardoning a person is very similar to judging a person, and it is quite likely that the Framers’ generation would have understood the principle against judging yourself also to apply to pardoning yourself. Thus, I lean towards resolving the ambiguity against the self pardoning power.

But I do agree with Epstein about one thing. If President Trump does choose to pardon himself, that is not an impeachable offense. The answer to the self pardon issue is not clear and asserting a contested power is usually not impeachable. Part of the reason President Andrew Johnson was not convicted during his impeachment trial was the belief that he was challenging an unresolved constitutional issue. The same could be said of President Trump.

Of course, that a self pardon is not an impeachable offense does not mean that the House of Representatives could not conclude that the actions for which the President pardoned himself constituted an impeachable offense. It is entirely appropriate for the Congress to use the impeachment power to remove a President who had behaved improperly. But pardoning himself – by itself – is not an improper action.

Update:

Over at the Originalism Blog, Mike Ramsey discusses the arguments of Eric Muller and Andrew Hyman that the power to grant pardons suggests that a self pardon is not permissible because one does not grant things to oneself.  Muller uses an analysis of word usage from the 18th century to conclude that while “give myself” was a not uncommon usage, “grant myself” was an uncommon usage.

This is an interesting argument.  If one accept’s Muller’s claim, it adds to the case against self pardons.  It is true that the idea that one cannot grant something to oneself is a pretty subtle way to convey an idea.  But it still counts.  More importantly, I think, is that it may reinforce the argument about the King not having the self pardon power under English law.  The Constitution may have used the word grant because it was thought that the pardon power did not cover self pardons.  Thus, the “grant” argument and the “King’s power” may reinforce one another.

That said, I would like to see the grant argument explored further.  There are important methodological questions involved in these types of usage arguments.  If some people used the phrase “grant myself” but it was uncommon, which way does that cut?  If people sometimes used the term that way, that seems suggest that the term did not imply that grants could not be made to oneself.  This would be especially the case if there were other reasons why the usage was uncommon.

Reader Discussion

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on June 08, 2018 at 11:00:19 am

"The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Question:

Since the text DOES include a specific exception, would this not indicate that there are NO OTHER exceptions. Clearly, the President may not pardon himself were he to be impeached as the text would indicate but i see no other limitation based on the text; nor does there appear to be any history on the issue.
It also strikes me that the exception for impeachment indicates an understanding that the collective action, in a sense, a *judicial* action of the Legislative, is deemed to be more protected from Executive negation than is the decision of the Judicial (trial and conviction) and that NO ONE may overturn the considered / deliberate determination of the peoples Representatives, i.e., the Legislative Branch.

BTW: Over at The Originalism Blog:

http://originalismblog.typepad.com/the-originalism-blog/2018/06/can-the-president-pardon-himself-againmichael-ramsey.html

A Mr Muller argues that the President may not pardon himself based upon a linguistic analysis of the text. It would appear that the contemporaneous (and current) meaning of the word "grant" implies that one may only grant something to someone other than oneself. Kind of clever - but it may very well be correct.

Now an odd question:

Let us suppose that the Governor of the State of Washington is impeached for tax fraud against the US Treasury.
May the President pardon this miscreant (and he is a mischief maker, BTW)? It is a crime against the United States BUT it is also an impeachment, albeit not a Federal impeachment.
Hmmmm!!!!!!

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gabe
on June 08, 2018 at 11:23:03 am

Of course this leaves us nowhere. If a president should pardon himself it is reviewable only by Congress by way of articles of impeachment. But for some reason Epstein and Rappaport think an alleged abuse of the pardon power is not an impeachable offense. Since such a pardon might well be considered an abuse of a power granted by the Constitution it seems like exactly the kind of high crime or misdemeanor impeachment was intended to check.

It easy to think of many ways Congress and the country might think that the pardon power could be abused; say, for instance, selling pardons like Clinton did for Marc Rich and his associate or, again like Clinton, pardoning his brother and an assortment of more or less corrupt former Congressmen and former officers of the United States. That a remedy has fallen into disuse does not mean the remedy does not exist.

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EK
on June 08, 2018 at 12:17:08 pm

Interesting debate. I'd like to take a crack at this question, thank you in advance for indulging this non-lawyer and please correct my ignorance of the law wherever it may appear below:

Presumably, since the President's pardoning power doesn't extend to cases of impeachment, in a conviction against himself/herself, the President would be pardoning a conviction prosecuted by not Congress, but by a Federal Prosecutor in a Federal Court.

Also, presuming, to impeach and convict a President, Congress need not re-try the President for the same crime to establish guilt for a second time for purposes of impeachment, which would constitute double jeopardy, wouldn’t a mere prior conviction therefore be prima facie evidence enough to impeach and convict by Congress?

Presuming further, that Pardoning and Expungement are not synonymous, and pardon does not automatically expunge the conviction or the record of the crime.

And, whereas, although, "[i]t would be highly unusual, [but] there have been a few cases where people who had not been charged with a crime were pardoned, including President Gerald Ford's pardon of President Richard Nixon after Watergate and President Jimmy Carter's pardon of Vietnam draft dodgers"*, presumably, a pardon at this stage prevents the particular crime from all future prosecution. And, presuming, the President can arguably self-pardon prior to indictment or trial, or conviction.

It would therefore, seem while self-pardon isn't grounds alone for impeachment, couldn't a case be made that the mere conviction, even for a pardoned (but not expunged) crime, is grounds for impeachment? And, if this case can be made, wouldn't the answer as to whether Congress can impeach the president for an impeachable pardoned offense depend on if the self-pardon occurred prior to indictment, trial, or conviction, or following a conviction?

Which is to say, if the self-pardon occurred prior to indictment, trial, or conviction, Congress could not impeach the President for this particular impeachable offense, because it’s been established that a pardon at this stage prevents all future prosecution.

However, conversely, it might also be argued, if the self-pardon occurs following a conviction, and if Congress can impeach the President for the pardoned impeachable offense because the prior conviction itself is prima facie evidence enough to impeach, then Congress could impeach the President for a self-pardoned impeachable crime.

This is probably already too much for a single post so I will close here and wait hopefully for response.

*Source of quote: https://www.justice.gov/pardon/frequently-asked-questions

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Paul Binotto
on June 08, 2018 at 14:47:58 pm

The full clause is "The president shall ... have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." I wonder about that last part "except in cases of impeachment." If the President was impeached for something that he pardoned himself of, could he then be prosecuted because of that clause?

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Devin Watkins
on June 08, 2018 at 14:57:57 pm

The king could not pardon himself, or did not. Legally speaking, could he commit a crime? Was it possible for him to need pardon? Maybe only for acts before he was crowned? Legally speaking he was a different person then, however. Two bodies and all that. I thought that was the struck meaning of “the king can do no wrong.” When he does in fact violate the law it’s a crisis, of course, precisely for that reason. Once the executive is an elected president, however, the question becomes possible. But it’s still likely to be a crisis.

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Richard Samuelson
on June 08, 2018 at 15:37:23 pm

My answer is "no." In the hypothetical case of Trump v. Müller, Trump would pardon himself the moment the indictment was filed. Then the House might or might not vote articles of impeachment. Then the Senate might or might not vote to convict by a 2/3 majority. In any event, if the pardon preceded the impeachment conviction I think it would be unreviewable in the courts.

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EK
on June 08, 2018 at 15:54:38 pm

The usual formulations in England in the 1640s were that "the law is the king speaking" (that was position Sir Francis Bacon defended and Sir Edward Coke and Parliament opposed after 1621) and the sovereign immunity corollary "the king (sovereign) can do no wrong."

The situation in the US after 1789 has been fundamentally different because sovereignty is vested in the governed in the US. But in England it was vested in the king alone before 1649. Between 1649-60 sovereignty was vested in Parliament. Between 1660-88 it was again vested in the king. Since 1688 in England sovereignty has been vested in "the king in parliament" (i.e.; in the institutions of government).

One must be careful about throwing around common law maxims out of historical context.

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EK
on June 08, 2018 at 16:08:03 pm

If the President is impeached and convicted by Congress, would not the President be immediately expelled from office, and therefore, incapable, no longer capable of pardoning himself or anybody else, by virtue of no longer possessing the office or power of the Presidency? Otherwise, the President would have immediete recourse to self-pardon; in that case, how could an impeachment conviction ever remove a sitting President, and what deterrant effect (beyond reputational and political) would impeachment carry? Talk about a recipe for tyranny...

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Paul Binotto
on June 08, 2018 at 16:34:59 pm

OK, so number 1:

A President, or for that matter, and official may be impeached for any reason that may fall under the rubric of high crimes and misdemeanors - anything that a sufficient number of Legislators may view as offenses / misdeameanors. We are not talking about crimes but rather, perhaps, something that is simply unseemly, im-politic, etc.

So, even if self-pardoned, an Executive may once again be impeached. There is nothing to stop the congress from doing so - other than political considerations; bear in mind impeachment itself is a *political* matter not a criminal matter.

2) It would seem that the President could not be prosecuted for an offense if he has already pardoned himself. It does not appear as if impeachment, that is a *successful* impeachment may reach and be sufficient to overturn a pardon. How can it? It would appear that once again, the political nature of impeachment is the sole recourse for an Executive who has self-pardoned. And the sole punishment arising out of an impeachment is removal from Office - not jail time which is presumably what would ensue were the Executive to be prosecuted for an offense that is technically no longer "prosecutable."

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gabe
on June 09, 2018 at 07:45:31 am

Prof. Rappaport,

You have often promoted that Constitutional amendment is a much disused privilege in the U.S. and advocate that an amendment should be advanced in order to remind Americans of its function and method.

While I have largely resisted amendment for amendment sake, preferring it to be reserved as a procedure of last resort, lately I have been considering one amendment which I could stand behind; formally incorporating the Declaration of Independence into the Constitution.

To my knowledge, to date this particular amendment hasn't ever proposed, however, I think it is one that may have broad support among the American people, might be easily adopted, and would be an enshrining that this brilliant document so richly deserves.

I would be interested in hearing your thoughts and of the LLS readers on this proposal.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.