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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.

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