Let me digress from our discussion of legislative discontinuity to address a more topical issue: presidential self-pardons. The question whether the president may validly grant a pardon to himself has been sporadically discussed since the inception of the current administration, but the debate accelerated following President Trump’s issuance on June 4, 2018 of the following tweet:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
Whether Trump in fact has the “absolute right” to pardon himself is not at all clear, but it is not a very important issue at this juncture. In fact, as I will explain over this series of posts, it is not a question that should be of much interest to Congress at all. What should matter to Congress is why the president is raising the possibility of a self-pardon, how this relates to his use (or abuse) of the pardon power to date, and whether his current or potential exercise of the pardon power constitutes a prima facie impeachable offense.
Before getting to that, however, let us consider what “numerous legal scholars” have actually said about presidential self-pardons.
The Constitutional Validity of the Self-Pardon
Contrary to the president’s tweet, there is no scholarly consensus on the validity of self-pardons. As Professor Brian Kalt has explained (well before the current administration):
Courts cannot overturn—or even review—an ill-advised pardon, but they can reject an invalid one. Self-pardons are on the margin. There is a good, simple argument that self-pardons are valid, and a worthy, more complicated argument that they are not. There is no consensus among lawyers or scholars sufficient to stop a president from pardoning himself, or to deter a prosecutor from challenging such a pardon. So the prosecutor would prosecute, the president (or ex-president by that point) would resist, and the courts would decide the issue.
Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and their Enemies 41 (2012). Note that this issue will not and cannot be resolved unless and until some president attempts to pardon himself, and at that point it will be up to the courts, not Congress, to decide on the validity of the pardon.
The argument for the constitutionality of the self-pardon is straightforward and largely based on the constitutional text, which provides the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. const., art. II, §2. This language is unqualified as to the persons who can be pardoned and therefore (one might conclude) the president can pardon himself.
Kalt suggests that this inference is strengthened by the rule of expressio unius est exclusio alterius (lawyer speak for “the expression of one thing is the exclusion of another”). Constitutional Cliffhangers 42. Because the Pardon Clause places some explicit limits on the pardon power (e.g., it does not apply to impeachment), this arguably “implies that there aren’t any other limits.” Id.
Professor Michael McConnell amplifies this argument by contending that the Pardon Clause’s “exception for impeachment shows that the clause extends to presidential misconduct, and suggests the ultimate remedy is impeachment by the House and conviction by the Senate, rather than criminal prosecution.” In other words, McConnell maintains that the impeachment exception exists primarily to ensure that the president cannot prevent his own removal, an exception that would be unnecessary if the president could not pardon himself at all.
There are both textual and historical rejoinders to these arguments. As a textual matter, impeachment applies not only to the president, but to the vice-president, federal judges, heads of departments, and numerous other civil officers of the United States. Thus, the impeachment exclusion does not necessarily have any implication for the existence of a self-pardon power. Moreover, while the doctrine of expressio unius may have some force here, it is most commonly applied where there is an enumeration of items of the same class or type as the missing item. The application to the Pardon Clause is weaker because the clause’s enumerated exceptions involve the type of proceeding (e.g., impeachment), rather than the persons eligible for pardon.
As a historical matter, it is true that constitutional debates over the impeachment power focused on the issue of impeaching the president. See Raoul Berger, Impeachment: The Constitutional Problems 106 (1974) (“in the impeachment debate the Convention was almost exclusively concerned with the President”). However, the impeachment exception to the Pardon Clause appears to have arisen for an entirely separate reason, namely to track the then-existing state of the law in Britain, where Parliament by the 1701 Act of Settlement had prohibited the king from using pardons to stop impeachments. Thus, when the Committee of Detail added a pardon power during the federal convention, it included an impeachment exception that mirrored the Act of Settlement. See Brian C. Kalt, Pardon Me: The Constitutional Case Against Presidential Self-Pardons, 106 Yale L. J. 779, 785 (1995).
The British exception did not relate to self-pardons because the king, being subject neither to impeachment nor the criminal law, had no reason to pardon himself. Id.at 783. Instead, it stemmed from an effort by Charles II in 1678 to pardon one of his ministers, the Earl of Danby, against whom Parliament had initiated impeachment proceedings for conspiring with France. See Berger, at 46-49; Kalt, 106 Yale L. J. at 783-84. The outrage sparked by this pardon reflected not only the view that it encroached on rightful parliamentary prerogatives, but the fact that the king was clearly part of the conspiracy in question (Danby was acting as a go-between for Charles II in his secret dealings with France). Thus, when Parliament ultimately foreclosed the use of pardons as a defense to impeachment in the Act of Settlement, it was not concerned with self-pardons but it certainly had “self-interested” pardons in mind.
The framers also considered the possibility of self-interested pardons, as illustrated by the following colloquy about the Pardon Clause toward the end of the federal convention:
Mr. Randolph moved to “except cases of treason.” The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.
Col. Mason supported the motion.
Mr. Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
Mr. Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
II Farrand’s Records 626 (Sept. 15, 1787). Randolph’s motion was defeated. Id. at 627.
Professor McConnell interprets this colloquy as supporting the existence of a self-pardoning power. He reads Randolph as raising a concern about a presidential self-pardon, and he interprets Wilson’s response as meaning that impeachment and removal would be an adequate check on that possibility. Critically, McConnell believes Wilson is referring to the fact that the president could be “prosecuted” in the Senate, rather than in court.
Professor Kalt, on the other hand, believes Wilson was referring to criminal prosecution. Kalt, 106 Yale L. J. at 786-88. In that case, Wilson’s assertion that the president could be prosecuted provides some evidence that he believed self-pardons were invalid. Id. at 788.
In my view, Kalt’s interpretation of this colloquy is the stronger one. Randolph makes no explicit reference to self-pardons, and it seems more likely that he is referring to a Danby-like situation where the president pardons one or more of his own co-conspirators.
It also seems somewhat more natural to infer that Wilson was referring to criminal prosecution. In any event, there are less ambiguous references to the possibility of a president being criminally prosecuted after impeachment. George Nicholas, for example, remarked at the Virginia ratifying convention that a president could be “absolutely disqualified [following impeachment and conviction] to hold any place of profit, honor, or trust, and liable to further punishment if he has committed such high crimes as are punishable at common law.” 3 Elliot’s Debates 240.
These remarks and the absence of any objection based on the president’s power of self-pardon provide some evidence that no such power was believed to exist. On the other hand, as Kalt acknowledges, this is short of overwhelming evidence because the framers might not have been thinking about self-pardons at all. Kalt, 106 Yale L. J. at 787-88.
The strongest argument against the validity of self-pardons is that the Pardon Clause, while ostensibly unqualified as to whom may receive pardons, is ambiguous as to self-pardons when read in the context of the English law upon which it was based. As Professors Michael Rappaport and Michael Ramsey have pointed out (separately), because the royal pardon power in England did not (or at least arguably did not) encompass self-pardons, one might plausibly interpret the constitutional “Power to grant Reprieve and Pardons” as not including self-pardons based on historical antecedents of this provision. This argument is buttressed by the Pardon Clause’s use of the word “grant,” which arguably suggests that the pardon is given by one person (the grantor) to another (the grantee).
If the constitutional text is deemed ambiguous, there are a number of reasons, detailed by Kalt, for construing it to exclude self-pardons. See Kalt, 106 Yale L. J. at 793-99, 803-09. Of these, the most powerful is the fundamental principle against judging one’s own case. Id.at 806-07. This principle was well known to the framers. See Federalist No. 10 (Madison) (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”).
All in all, the arguments for rejecting a power of self-pardon are, in my judgment, stronger than the ones for recognizing it. Reasonable people, however, can disagree on this (for other examples of arguments scholars who believe the president may pardon himself, see Richard Epstein, David Weisberg, and Jonathan Turley). Few if any constitutional scholars would describe this question as settled or easy. As Senator Ted Cruz observed, it is “an open legal question, with scholars on both sides of the political spectrum disagreeing in good faith.”
Fortunately, the validity of a presidential self-pardon has essentially no relevance to Congress’s constitutional responsibilities. The issue is one that can be resolved only by the courts, and then only if and when a president actually purports to grant such a pardon. Congress has no role in deciding whether self-pardons are valid, either before or after one is granted.
Congress does have, however, an important role in checking abuses of the pardon power. I will turn to that subject in my next post.