“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself…,” President Trump tweeted on June 4, 2018. A day earlier, the President’s attorney Rudolph W. Giuliani declared that the President “probably does” have the power to pardon himself. Would such a pardon stand up before the United States Supreme Court?
If one is proceeding from an “Originalist” approach, a three-step process is necessary:
(1) examine the text of the Constitution;
(2) examine the documents related to the Constitutional Convention (Madison’s debates notes) and the campaign to advance the Constitution’s ratification (the Federalist Papers); and,
(3) assess contextual information that provides insight into how Constitutional principles were understood.
If one is proceeding from an alternative methodology, as is often the case with numerous Supreme Court Justices, the question as to what interpretation would lead to the optimal or desired policy outcome is given considerable weight. Under that latter approach, a self-pardon would be incompatible with rule of law.
Article II, Section 2, Clause 1 of the United States Constitution simply states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Nothing more.
James Madison’s notes from September 15, 1787 record the following discussion:
Art: II. Sect. 2. “he shall have power to grant reprieves and pardons for offences against the U. S. &c”
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…
Afterward, the discussion turned to whether pardon power should “devolve” to the Legislative Branch or whether it should be shared between the Legislative and Executive Branches. The idea of a President’s pardoning himself never arose at the Convention. Further, none of the Federalist Papers offered a sufficiently detailed discussion to provide a definitive textual account on that question.
This is where the President’s attorneys end their legal analysis. They conclude that the Constitution’s silence on self-pardons, the absence of such a discussion at the Constitutional Convention, and the lack of insight from the Federalist Papers, allows the President to issue self-pardons.
That legal analysis is incomplete. One needs to understand how those who wrote and supported the Constitution understood the role of pardons. English common law is a useful starting point. Many of the Constitution’s protections have their roots in English common law. With respect to pardons, Chapter 31 of Blackstone’s Commentaries on the Laws of England provided:
THE only other remaining ways of avoiding the execution of the judgment are by a reprieve, or a pardon; whereof the former is temporary only, the latter permanent… THIS is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigor of the general law, in such criminal cases as merit an exemption from punishment.
This language provides crucial detail. Pardons can be utilized to avoid the “execution of the judgment.” A judgment is the sentence that follows conviction. Prior to conviction, no judgment can be rendered.
This understanding appeared in early American legal discussions published in the American press. An article written under the byline “Juris Consultus” in the September 7, 1801 issue of the Philadelphia Gazette explained:
If Duane had been tried and acquitted, then even he and his friends would have stood on more honorable ground: –if convicted, then and then only, ought the President by virtue of his power to pardon, to have exempted him from the consequences of guilt, if any circumstances might seem to require it. What then are the people of the United States to think of a President, who under circumstances like these, would attempt to stop a public prosecution, and by a mere mandate, wrest from the hands of justice, a wretch who having spared none himself, was less than any other entitled to the extraordinary interposition of presidential prerogative!
A second piece that appeared on September 11, 1801 was even clearer:
The very enumeration and specification of the powers of “reprieve” and “pardon,” not only mark the objects of interference; but they exclude him from every other mode of exercising control over the course of law and justice. This would be the legal operation of enumerated powers, tho’ the constitution were silent; but as if to prevent the possibility of usurpation, the amendments prove… “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respective, or to the people.”
Such articles support the understanding expressed in English common law. Pardons were available only to convicted persons. Earlier Presidential intervention violated the separation of powers. It was an intrusion into the judicial process that is outside the President’s Article II constitutional authority. Further, the general idea was that the Constitution’s silence did not confer additional authority to the President, but that it reserved authority “to the States” and “the people.”
Within this understanding, a President could only issue a pardon only after he or she had been convicted. It could not be used to avoid impeachment (the equivalent of the House’s indicting a President) It could not be used to block his removal from office. Removal is the Senate’s equivalent of convicting a President. Prior to his removal from office, he has not yet been convicted. However, once a President has been removed from office (convicted), the President no longer possesses the authority to grant pardons. Thus, within the understanding that existed during the time the Constitution was written and adopted, a self-pardon was an impossibility.
Nevertheless, some might counter that President Ford’s pardon of President Richard Nixon undercuts that understanding. In his pardon proclamation, Ford wrote:
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.
That argument also falls short. President Nixon’s resignation was substantively the equivalent of a “plea” deal to the charges contained in the Articles of Impeachment that had been drawn up in the House of Representatives. In effect, it was functionally the same thing as a conviction. Thus, Ford’s pardon shielded Nixon from “execution of the judgment” related to the Watergate scandal and attempted cover-up.
All said, there is ample ground to rule against a self-pardon from an Originalist position. Those ruling on grounds of efficacy would all but certainly reject it. Therefore, any attempt by the President to grant himself a pardon would very likely be doomed in the Supreme Court.
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