Short Take: Who Begs Your Pardon?

There is probably no power of the Executive less constrained than the one set forth in Article II, Section 2.

[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Is this power ripe for abuse? Absolutely. The president can use it to buy off the silence of co-conspirators, allies, campaign contributors, pals and pretty much anybody else. Of course, there is an inherent limit on the exercise of the power, as no one gets to use it without first being elected president. Vote well and the power doesn’t get overly abused. Vote poorly and, well, who knows?

Before one gets all caught up in the battle of which is worse, Crazy Joe Arpaio or Marc Rich, consider that the worst abuse of the pardon power ends with some miscreant walking free when he might not deserve to. So what? That the president gets to hand out gifts of mercy to friends isn’t the worst thing that can happen, even if the unfairness and impropriety of it pisses us off. After all, it’s mercy, even when used to forgive Roger Stone’s crimes against fashion.

But not since Nixon has the question been raised whether the president can pardon himself.

He thinks so.

Then again, it’s not as if Trump has demonstrated any grasp of law, constitutional or otherwise.

Most academic commentators and (more importantly) the Department of Justice disagree. A 1974 Office of Legal Counsel memorandum concluded that self-pardons were not within the pardon power because it is inappropriate for the President to be a judge in his own case. The memo is thin, but represents the official position of the Department of Justice. In my view, Brian Kalt makes a more persuasive case against the legitimacy of self-pardons (and at greater length here). Tim Sandefur offers a contrary view, but I am not convinced by it. As I see it, the language, history, usage and understanding of the nature of a pardon all point in the opposite direction. [For more, see this “smorgasbord of views on self-pardoning” collected by Jack Goldsmith.]

Even from the originalist/textualist perspective, the notion that a president can pardon himself doesn’t fly.

Based solely on other uses of grant in the Constitution, a person could reasonably determine that a president cannot grant himself a pardon. But in evaluating the meaning of the Constitution’s words, the text of the Constitution isn’t all that counts. The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s “original public meaning.”

Thus, to the extent that the most popular contemporaneous law dictionary is valuable in understanding what ordinary speakers of the founding era meant by “granting,” it seems clear that they probably had in mind an interpersonal transfer.

The problem, of course, is that the question has never been tested. No president has tried to pardon himself and the Supreme Court has never considered the question. Until now, it was too outlandish a question to take seriously. Yet, here we are.

This isn’t about whether prosecuting Trump is a good idea or one that opens a Pandora’s box of problems, such as a president in fear of prosecution might use the office in even more nefarious ways to protect himself. And even if a president could pardon himself, it would only apply to federal offenses, leaving state and local prosecutors like Cy Vance to do as they must, whether it’s a good idea or not.

But there is yet another issue that will arise if Trump pardons himself, or his family members for that matter which might be challenged as too corrupt to accept, even if there is nothing in the pardon power that would preclude a president’s ability to do so. Courts would then spend the next few years addressing the now-salient question of whether the pardon power can be used by a president to pardon himself. As if there aren’t more important problems to address.

Yet, the fear that Trump will, as he’s escorted out the door on Eviction Day, pardon himself while simultaneously coming out with some ALL CAPS claim about how he’s done nothing wrong, been PERFECT, is smarter than the generals and Office of Legal Counsel, and does this to SAVE DEmoCracY, seems entirely possible if not likely. A graceful exit is not Trump’s way.