Comment: Constitution does not allow Trump to pardon himself

Although it’s not expressly forbiden, the Framers would have seen a self-pardon as obstruction of justice.

By J. Michael Luttig / Special To The Washington Post

In June 2018, in the throes of the special counsel’s investigation into Russian interference in the 2016 presidential election and possible obstruction of justice by President Donald Trump, the president claimed in a tweet “the absolute right to PARDON myself,” citing “numerous legal scholars.”

The president was correct that some scholars have reached that conclusion. But those scholars are wrong. The president has no right under the Constitution to pardon himself.

Article II, Section 2, Clause 1 of the Constitution provides that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

There is next to nothing from the constitutional convention, state ratification debates or 229 years of Supreme Court decisions that sheds light on whether this language empowers a president to pardon himself for federal crimes.

An acting assistant attorney general for the Justice Department’s Office of Legal Counsel tentatively said in August 1974, four days before President Richard Nixon resigned, that there is no power to self-pardon. This opinion, a single conclusory sentence, can hardly be regarded as authority on the subject.

The argument often made for the presidential self-pardon is that the authority is absolute, and that the pardon clause does not expressly prevent self-pardons. The argument often made against self-pardons is that they would be inconsistent with the president’s responsibility in Article II, Section 3 to “take Care that the Laws be faithfully executed.”

Neither of these arguments is sufficient to prove its respective point.

The pardon clause’s language is broad indeed, unambiguously allowing the president to pardon seemingly any other person convicted for any federal criminal offense. But its language does not unambiguously include the president himself. Had the Framers intended to give the president such broad power, we would expect them to have clearly said so. After all, the new nation was in the process of rejecting a monarchical government in favor of a democratic republic.

Instead, the words they chose to confer the pardon power on the president contemplate his granting of reprieves and pardons only to persons other than himself. The word “grant” connotes a gift, bestowal, conferral or transfer by one person to another; not to himself. That would have been the understanding of this word at the time of the Constitution’s drafting, and it is how the term “grant” was understood and is used elsewhere in the Constitution.

At the same time, the “take care” argument against the power to self-pardon merely assumes the very conclusion it reaches: that the pardon clause does not empower the president to pardon himself, and therefore that his self-pardon would be irreconcilable with his responsibility to take care that the laws be faithfully executed. This begs the question just as much as the textual argument made for self-pardons. If the Constitution allows a president to pardon himself, there could be no argument that in pardoning himself the president was not faithfully executing the laws.

So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power; a power in the sovereign that was little known to the Framers, if known at all.

Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity. There, without so much as a hint of a president’s power to avoid criminal liability through self-pardon, they provided that even “in Cases of Impeachment,” for which the president can only be removed and disqualified from holding high federal office, “the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.

In contemporary constitutional parlance, the Framers more likely would have regarded a self-pardon not as an act of justice, grace, mercy and forgiveness, as they did presidential pardons of others. They would have viewed a self-pardon as a presidential act more akin to an obstruction of justice for criminal offenses against the United States by a president, the prosecution for which can be brought, at least according to the Justice Department, only after a president leaves office.

The current president, never shy about violating norms, may well be tempted to challenge the Constitution by pardoning himself for any possible crimes he may have committed during his presidency. If he does, he may discover that neither the Constitution nor the Supreme Court will allow him to forever escape liability for any crimes he may have committed against the nation he served.

J. Michael Luttig served as a judge on the U.S. Court of Appeals (1991-2006) and as assistant attorney general for the Office of Legal Counsel at the Justice Department (1990-1991).

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