In the countdown to the 2024 presidential election, leading Republican candidate Donald Trump finds himself embattled in legal controversies. Within this context, a hotly debated question looms large: Can the President actually pardon himself?
Under Article II, Section 2 of the U.S. Constitution, the President holds the formidable power to grant pardons. This authority encompasses a broad spectrum, from full pardons to amnesty for large groups, commutation to reduce punishment severity, reprieves to delay punishments, and remission of fines. However, this power has its boundaries: it excludes offenses related to impeachment and only applies to federal crimes against the United States.
There is also a twist worth mentioning: a pardon is not automatic. It requires acceptance, implying guilt akin to a plea bargain. Individuals can even reject a pardon by asserting their Fifth Amendment rights against self-incrimination instead.
With these conditions in mind, it is easy to see why the question of whether the President has the right to pardon himself is contentious. Rightly so. For how could one actually believe that the President could commit crimes in office, issue a self-pardon, and be completely absolved of consequence? Yet this result is not as outlandish as one might expect.
Interpreting the pardoning clause of the Constitution requires a review of its history and text. In reviews of legislative history several cited, among other sources, the Records of the Federal Convention of 1787 and James Madison’s Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America, and found that the pardon power was sparsely debated among the Framers. The Founders rejected proposals such as placing the power to pardon with the Senate or limiting the power in cases of treason. There was no discussion on self-pardoning power itself. However, it is unclear whether that is because the Framers failed to consider it, or because it was obvious that it was either valid or invalid, thus not warranting debate.
Originalism, the constitutional interpretive method championed by the late Justice Antonin Scalia and Justice Clarence Thomas which applies the plain understood meaning of the text of the Constitution at the time of the Founding, does not play well with legislative history because it tends to equate a single person’s thoughts to the entire population. The plain understood meaning at the time can instead be found in the practices and laws of their time.
As such, in looking at the legal history, what appeared in colonial governments was a broad pardon power inherited from the British Crown, with roots as far back as Athenian and Roman precedent. Scholars such as Lauren Mordacq for the Albany Government Law Review examined the newly formed state constitutions following the Revolutionary period and concluded that several states “limited pardons, gave pardon power elsewhere, or eliminated it altogether.” In looking at state ratifying debates following the Constitutional Convention however, others found that “nearly all agreed that the [P]resident should have pardon power…” and that “the pardon power was needed in government and it should be placed with the body ‘possessing the highest confidence of the people’ -the executive branch.’” Alexander Hamilton’s influential Federalist 74, written for the purpose of persuading the states to ratify the Constitution, also favored broad pardon power for the President who is “… one man [who] appears to be a more eligible dispenser of the mercy of government, than a body of men.” The Supreme Court, throughout our history and in several cases, has further interpreted the pardoning power to be an unlimited private act of the executive and Presidents have freely given pardons without much challenge throughout our history.
The closest test we have of the self-pardon power comes from a small number of state governors who pardoned themselves in the late 18th and 19th centuries and saw no judicial challenge. So, it has happened in our nation’s history, but the President himself has yet to pull the trigger.
Now let’s turn to the constitutional text. The full text of the pardon clause is: “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That’s it.
Debates about self-pardons being inferred from the text have split legal experts. Advocates like Michael Kelley argue from a Lockean perspective and assert that the Constitution’s silence implies allowance. Kelly highlights Justice Scalia’s canon of interpretation expressio unius or, in other words, “[t]he expression of one thing implies the exclusion of others.”
In this case, since the Constitution provides only two specified limits (limited to federal crime and barring impeachment), we can conclude that there are no other limitations. The President can pardon himself. Not even the word “grant”, which in 1755 was defined to mean: “[In law.] A gift in writing of such a thing as cannot aptly be passed or conveyed by word only;…” appears to limit the President from “gifting” something to himself. A damning textual argument.
Skeptics such as Brian Kalt, however, challenge this by pointing to various instances where expressio unius does not comport with standard constitutional interpretation. Kalt makes the point in the Yale Law Review, writing that Congress, under Article I Section 4,
can make any regulation it wants regarding the times and manner of choosing all members of Congress, and the places of choosing Representatives. The sole restriction—against regulating the places of choosing Senators—implies that the remaining power is plenary. Such a reading cannot be accurate. Congress presumably could not, for instance, restrict the ‘place’ of all House elections to Point Barrow, Alaska, and force eligible voters to go there to exercise their suffrage.
According to Kalt’s school of thought, a self-pardon is incompatible with the Constitution’s well-supported defense against the “self-dealing” of government officials. This defense, as Kalt describes, includes several other provisions of the Constitution’s structure such as the fact that congressmen cannot hold more than one federal office or that the Vice President cannot preside over an impeachment hearing of a President because he would have a vested interest in the outcome of the case.
Robert Nida and Rebecca L. Spiro of the Oklahoma Law Review, in arguing that the self-pardoning power is permissible, provide a footnote with a striking textual argument against the conclusion that the Constitution allows the President to shield himself from criminal liability. Article I, Section 3, which says “the party convicted [of Impeachment] shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law” implies that the President is subject to criminal proceedings after removal from office. A self-pardon would remove this implication that the Founders did put into the text, entirely.
Mudding the waters further, Michael Kelly points to a possible loophole found in the 25th Amendment—“the [P]resident can issue a constructive self-pardon by declaring he is temporarily unable to perform the duties of office, allowing the [V]ice [P]resident to step in and pardon him, whereupon the original [P]resident can reassume duties with the protection of a pardon.”
Similarly, the self-pardon might be allowed under the President’s power to grant wide amnesty in a hypothetical situation where the President, himself, is included.
Champions of the unitary executive theory hold that the President has complete control over the Executive Branch in enforcing federal law. They would argue the self-pardon power naturally derives from the Constitution’s Vesting Clause which allows the President to pardon himself because it’s a power solely vested with him. The President is within his right to exercise this power just as he is within his right to make executive staffing decisions and command the administrative agencies.
Recent history, especially post-Watergate, has shaped perceptions of presidential pardons. As Lauren Mordacq of the Albany Government Law Review wrote,
Presidents that issued pardons Pre-Watergate granted pardons not for any significant gain, but did so in the better interest of the public or as an act of mercy (keeping with Washington’s rationale). President Ford’s pardon of Richard Nixon significantly changed presidents’ pardoning practices…[and] Post-Watergate pardons have been heavily influenced by factors outside of the United States Constitution: mainly mass media and public opinion.
Perhaps in noticing the politicization of the pardons, some have offered suggestions to reign in the pardon power because of its broadness and apparent allowance for self-pardons. Budd Shenkin and David Levine of the University of California, College of Law, San Francisco, for example, include several remedies such as requiring a congressional co-signer of all pardons by the Speaker of the House; restricting the time period in which a President can issue pardons; and, of course, prohibiting pardons of oneself and immediate family members.
Nida and Spiro recommend the inclusion of the phrase: “to All Individuals Except for the President’s Spouse, Children, Siblings, Parents, or Self” to ensure the President cannot be the judge in his or his immediate family’s case.
Others, such as Kristen H. Fowler, writing for the Indiana Law Journal, used state-level examples of delayed or obstructed pardons hindering the adjudication of justice as the source for their preference for engaging in already established checks on the Executives’ power. In other words, Fowler contends that the broad pardon power, which currently allows for self-pardons, may be a necessary cost in seeking justice.
In a 2020 survey of law school faculty conducted by Dr. Michael J. Conklin, Powell Endowed Professor of Business Law at Angelo State University, Dr. Conklin found that “[t]he consensus [among law school faculty]… is that it is probably not constitutional for a President to pardon himself in a non-impeachment related matter.” However, the debate, especially in the shadow of current political events, is only becoming more contentious. Without definitive action by a President, we will not receive an answer.
Justice Scalia often opined against a strict constructionist reading of the Constitution and argued that the text must be informed by its original plain understood meaning. However, when the history is unclear, emphasis on the text is necessary. Perhaps federalism is a key to this seemingly unnatural reading of the pardon clause. Recall that the President’s power to pardon is limited to federal criminal offenses. Second to the impeachment provisions and ballot box, the ultimate check on the self-pardon power may very well be the state-level criminal statutes to which the President may ultimately be answerable. This is a central issue in Trump’s legal battle against racketeering charges in Georgia where, even after potentially winning the Presidency, he would not have the power to pardon himself for the state-level crime. The White House, however, is not subject to District of Columbia law so this check does not work on a President who commits crime from the Oval Office. Despite how extraordinary that outcome sounds, that is how the text of our Constitution is written. Self-pardons for all federal offenses, except in cases of impeachment, are permissible.
John Adams, quoting James Harrington’s 1656 Oceana, famously said that our republic should be a government of laws and not of men. It is the dogma that no one is above the law. But it is also the idea that the law itself governs, not the passions of mobs. He proved this point by successfully acquitting the Boston Massacre soldiers in 1770, despite facing great antagonism from his fellow New England neighbors. Adam’s towering example highlights the importance of law being untethered from the debated desires of society. That, despite what the popular belief on what the spirit of the law is or means, it is the strict letter of the law that must reign supreme.
Catalyst articles by Jonathan Fuentes