Can the President Pardon Himself?

Can the President of the United States pardon himself? President Donald J. Trump has stated that he can, in fact, pardon himself, but argues that the question is moot because he has done nothing wrong and, thus, no pardon will ever be required. Scholars are divided on the question of whether President Trump’s conclusion is correct, and legal precedent is very slim, to say the least.

The President’s pardon power is based on Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”. This brief statement does not say that the President can pardon himself, but it doesn’t say that he can’t either.

An historical analysis of the extent of the President’s pardon power goes all the way back to 1866 when the Supreme Court affirmed in Ex parte Garland a pardon granted by President Andrew Johnson to a former Confederate politician. Garland was cited during President Richard Nixon’s Watergate controversy. Recall that after Nixon resigned in disgrace and was replaced by Vice President Gerald Ford, President Ford granted him a pardon for any crimes he might have committed even though he had not yet been charged with any crimes. (This is called a pre-emptive pardon.)

Post-Nixon, the issue again came up during President Bill Clinton’s Presidency and the Monica Lewinsky scandal. Writing at that time, federal judge and noted conservative legal scholar Richard Posner argued that the question of self-pardoning was left open by the Founding Fathers and concluded that “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”

President Trump has become interested in his pardon power lately. After a well-publicized White House visit by Kim Kardashian in which she argued in favor of a pardon for Alice Johnson, he commuted the remainder of her life sentence. Johnson had been in prison more than 20 years after being convicted on drug-related charges. Although she was deeply involved in a major drug conspiracy, her crimes were all non-violent.

He has also apparently indicated a willingness to pardon Martha Stewart (who said she would not be interested in his pardon); he has pardoned conservative author and film maker Dinesh D’Souza, who pled guilty to making illegal campaign contributions, former Arizona sheriff Joe Arpaio, who had been convicted of criminal contempt for continuing to racially profile Latinos in violation of a federal court order, “Scooter” Libby, the former chief of staff of Vice President Dick Cheney who was convicted of perjury and obstruction of justice for his involvement in a leak that revealed the secret identity of the CIA’s officer Valerie Plame; and he posthumously pardoned Jack Johnson at the request of Sylvester Stallone. Johnson, the first black heavyweight boxing champion, was convicted in 1913 for transporting a white woman across state lines. Johnson had served 10 months in prison. Trump also indicated that he was considering a pardon of boxer Muhammed Ali, but Ali’s conviction for resisting the draft during the Vietnam War had already been overturned by the Supreme Court.

Why has President Trump become so interested in his pardon power? Many commentators have suggested that he is sending a message to targets of the United States Special Counsel Robert Mueller investigation that if they refuse to “roll over” on him and are sentenced for federal crimes, he can and will pardon them. Of course, President Trump would deny this claim.

Click here to learn more about Sujit Choudhry >>

Another way to look at the question is to ask not whether the President can pardon himself, but whether the President should pardon himself. Even assuming the President could pardon himself, the question becomes whether such an action would be political suicide. Indeed, some have argued that a self-pardon would be grounds for impeachment. Of course, impeachment would depend on the House of Representative’s composition when Robert Mueller’s investigative report is finally issued, making the November 6, 2018 House elections even more relevant to this analysis.

There is one other argument that has been largely overlooked. Legal historian Kurt Metzmeier has argued that “There is zero evidence that the drafters of the Constitution intended for the presidential pardon to be more expansive that that of the English monarch.” But the king didn’t have unrestricted “pardon power”; he only had a “royal prerogative of mercy.” He concludes that such mercy “is granted by monarch to another party. No English treatise or judicial decision ever suggested that a king or queen could extend the royal mercy to the monarch’s own acts.” Thus, the conclusion based on historical analysis is that the President cannot pardon himself.

One final note that may prove to be important. The President’s pardon power — whether for himself or someone he is trying to protect — only extends to federal crimes. If a crime has been committed and it violates both federal and state law, the Presidential pardon only clears the federal violation. Typically, only the state’s governor can pardon a state law violation. This is significant because the New York State Attorney General has already indicated that some alleged federal violations by Trump affiliates may have also violated New York law.

If President Trump is correct and there will be no need to test his pardon powers, this is all a moot point. But if events take a different turn and the President does need to pardon himself, things will get interesting. Perhaps the phrase “constitutional crisis” is a bit too strong, but the debate would almost certainly end up in the United States Supreme Court.

For more expert legal analysis from Sujit Choudhry follow him on Facebook, LinkedIn, Twitter or check out his website here.

Constitutional Law, Peace Processes + Democracy Support | | @WZB_GlobCon | @ForumFed | | 🇨🇦