The Constitution’s tripartite system of checks and balances is among the most ingenious inventions in human history. It’s not perfect, any more than the electric light or the internal combustion engine, but like these things, but nothing has to be perfect—just better than the alternatives. Written by a generation of people who had experienced a form of tyranny—and read a lot about others—the Constitution establishes a flexible mechanism more like a shock absorber than a shield. But unlike these mechanical metaphors, the Constitution relies critically on the citizens who comprise it. It is, after all, just words on paper, meant to express a set of promises—and like promises, it can be broken. It is only so strong as our fidelity to it.
Like so much else in the Constitution—which doesn’t even contain a definitions section—the president’s power to pardon himself is left unaddressed in the actual words. The Constitution simply says the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Note that last bit: the President cannot immunize himself against the only mechanism that the Constitution provides for removing him. But he can grant pardons for all other offenses.
Why? Because the pardoning power has always been considered part of the executive power, and it is important for reasons beyond the obvious mercy. The use of criminal law for political purposes was something the founders were quite familiar with; they had lived under George III and their grandfathers had lived under the Stuarts. That’s why they wrote the treason clause in such a way that treason more or less doesn’t exist in the United States, at least in the form they’d known. Treason can only be adhering to and aiding an enemy, and must be actually witnessed, not proven by circumstantial evidence—and it cannot work corruption of blood. Treason is therefore an ordinary criminal charge in the U.S., which is totally unlike its use in the British Constitution with which the founders were familiar. Under that system, it had been a political device used to neutralize entire families that might threaten the crown.
The risk that Congress might undermine the power of the Presidency also led the founders to bar removal of the President except through the special case of impeachment. It would be an easy, all too easy, matter for the legislative or judicial branches, or both in concert, to try to remove the President or his advisers through manufactured criminal charges. The pardon power prevents such encroachments on his domain. The president, notes The Federalist, “may even pardon treason.” Well of course he can! A dangerously power-mad Congress or judge could all to easily accuse the President or an unpopular cabinet member of treason and cripple the presidency, otherwise. So of course he can pardon himself. But this does not, of course, immunize the President to commit treason, for he can still be impeached, and once removed from office, he can have no power to pardon, and can therefore be convicted in an ordinary court of any crime he’s committed. Is that an unrealistic prospect? The governor of Missouri was just replaced last week, having resigned because he was facing impeachment for precisely this reason. And a president may, of course, also be impeached after he has pardoned himself, for having misused his pardoning power.
True, no court has ever addressed the question of whether the president can pardon himself for ordinary crimes. And he cannot pardon himself, or anyone else, for crimes against state law. But considering the powers of his office, the opportunity for impeachment, and the system of checks and balances, the best answer is that he can pardon himself, unless impeached.
The pardoning power is an important component of a system that’s designed to protect the people—either from a malfeasant president or from an ambitious Congress. The founders knew that each branch of government poses its own risks to the people’s liberty (and rightly believed Congress the most dangerous). They established a system in dynamic equilibrium—but one that must be monitored and respected, in order to work. The system will not survive if the people are willing to disregard it—either by tolerating intolerable behavior in the President, or by undermining the crucial elements of his office.
Update: Couple points to clarify: no, if he pardons himself and then is impeached, he cannot then be tried for the crime; the pardon is still valid, in my view. Again, there's no court case on this, but there's also no reason that I can see why the pardon would not be valid. A pardon is absolute. True, that means a President could pardon himself for "any crimes he may have committed," Ford-style. But that would, in my view, be grounds for impeachment.
Doesn't this violate the maxim that a man should not be judge in his own case? No, for two reasons. First, a pardon is not an acquittal, or an expungement of record, or anything like that; it just means you don't get punished. It erases the consequences of a crime, but it is not judgment at all. Second, there are, as I've said, important constitutional reasons why, in this instance, the President is, in this limited sense, the "judge in his own case." Imagine a corrupt Congress trying to do evil to the nation, and the President vetoing that repeatedly, or taking other steps to protect the country from a corrupt Congress. If that happened, it would be critical for the President to be able to defend his authority with this self-pardon power. Consider for a moment the history of the Civil War, and Judge Taney's obscene resistance to the Lincoln Administration's defense of the Constitution, and it is not then hard to imagine some alternate universe in which, say, a secessionist movement in Congress or in the courts would try to use the criminal law to paralyze the President in his effort to defend the Constitution. Could some federal judge in South Carolina in 1863 have indicted Lincoln for some pretended crime (treason, for instance)? Such hypotheticals might seem silly to those not familiar with what actually happened in 1861-65. In any event, if something like that were attempted, it would be critical for the President to be his own judge, subject, of course, to Congress's power of impeachment.
On Twitter, Cass Sunstein says, "No, the president cannot pardon himself. Discussed here"—and links to his book, Impeachment: A Citizen's Guide. But here's what Sunstein says in his book (and this is the entirety of it):
Can the president pardon himself?
Probably not. What the heck, let’s go for broke: no.
The Constitution says, “The President...shall have Power to grant Reprieves and Pardons for Offences against the United states, except in Cases of Impeachment.” You could easily read that provision to say that the president can pardon anyone for anything (except in impeachment cases)—and that would allow self pardons. That’s the theory to beat.
One qualification to the theory is that, if the president exercises the pardon power in certain ways, he might be impeachable for that very reason. The president could be impeached if he said that he would pardon anyone accused or convicted of rape. And if a president is under investigation for serious wrongdoing and pardons himself, as a way of eliminating any risk of prosecution, there is a good argument that he has committed a misdemeanor in the constitutional sense. That would seem to be an abuse of power.
But that doesn’t answer the question. The best argument against self-pardons would emphasize the old maxim that “no one can be a judge in his own cause,” and add that if a president is pardoning himself, he's violating that maxim. Surely—you might insist—the drafters and ratifiers of the Constitution, deeply hostile to the whole idea of a king, could not have wanted to allow the president to place himself above justice. True, the pardon clause seems to give the president unlimited authority (outside of impeachment cases), but in view of the background and the context, it should not be read to allow him to insulate himself from the force of the criminal law.
Sounds right to me.
That’s it. That’s all he’s got. Which is a good example of why you shouldn’t “go for broke” in constitutional law. “Sounds right to me” is not a persuasive argument, especially against the plain language of the Constitution. Had the founders meant to deprive the President of power to pardon himself, they would have done so. They knew how to create exceptions from the pardon power. In fact they did that, by saying “except in cases of impeachment.” The fact that they omitted to say “except of himself” is proof that they specifically chose not to. And The Federalist, in discussing this Clause, refers to the fact that the governor of New York could pardon himself even in cases of impeachment, and discusses the mischiefs that causes. So the founders were familiar with the risks and chose not to ban self-pardons. The “old maxim” cannot override the text of the Constitution, and while the founders certainly were hostile to the idea of a king, they nevertheless modeled the pardon power on the royal pardon power—there were aspects of monarchy they liked and incorporated into the system, and for good reason. And if Sunstein is going to rely on what the founders intended in that sense, then he cannot omit reference to the checks-and-balances considerations I’ve addressed above. And yet he does omit it, in order to say “Sounds right to me.” Well, it may sound right or it may sound wrong, but the question is what the law is, and the law here is, yes, the President can pardon himself, and if you disapprove of him doing so, then you can impeach him because—as Sunstein correctly says—he is impeachable for the very reason of having abused his pardoning power.
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