News and Views

PARDON ME or PRESIDENTIAL SELF PARDON

by: Mari Bush on

President Trump’s recent “tweetings” raise interest in the concept of the presidential

pardon. Constitutional scholars, law professors and political pundits all weigh in on the

controversial question of whether a president can self-pardon. While hopefully the question

remains academic, a brief overview of the topic may be in order for all of us.

The Constitution of the United States, Article II, Section 2, Clause 1 provides as follows:

The President shall be Commander in Chief of the Army and Navy of the United

States, and of the Militia of the several States, when called into the actual Service

of the United States; he may require the Opinion, in writing, of the principal

Officer in each of the executive Departments, upon any Subject relating to the

Duties of their respective Offices, and he shall have Power to grant Reprieves

and Pardons for Offenses against the United States, except in Cases of

Impeachment.

(emphasis added).

Given the actual wording of the Constitution, legal and political commentators for the

most part agree that a president cannot issue pardons to prevent or undo their own impeachment

or the impeachment of another. Likewise, the strict reading of the constitutional demonstrates

that the power of the pardon applies only to “offenses against the United States” ----in other

words, it only applies to federal crimes and not to state crimes.

Where it gets trickier is if a president can self-pardon for a federal offense?

Hypothetically, if a president were convicted of federal fraud charges, would they be able to

issue their own pardon? The Supreme Court of the United States has not had to deal with this

issue. Back in August 1974, days before President Nixon resigned, Mary Lawton prepared a

memo in her capacity as acting assistant general in the Department of Justice’s Office of Legal

Counsel. She concluded: “Under the fundamental rule that no one may be a judge in his own

case, the President cannot pardon himself.” As Nixon resigned and his pardon came from his

successor, Gerald Ford, her conclusion was not challenged.

Well-known legal scholars agree with Ms. Lawton’s analysis. Separate Washington Post

op-eds on July 21, 2017 were written by Harvard’s Laurence Tribe, Richard Painter and Norman

Eisen (chief ethics lawyers for Presidents George W. Bush and Barack Obama, respectively) and

also by George Washington University’s Jonathan Turley. The Tribe et al piece reasoned as

follows:

“The Constitution specifically bars the president from using the pardon power to

prevent his own impeachment and removal. It adds that any official removed

through impeachment remains fully subject to criminal prosecution. That

provision would make no sense if the president could pardon himself.”

Professor Turley (and others) frames the issue somewhat differently. While a president

may be able to self-pardon, it is legally unsettled and political suicide.

The presidential tweets may be better understood if one’s analysis is based upon

Wikipedia and dictionaries rather than constitutional inquiry. For example, the term “pardon”

historically referred to Christian “indulgences” that could be bought and sold. Why not engage

in self-dealing for a “Christian” executive’s indulgences? Likewise, the dictionary defines a

“pardoner” as a “person licensed to sell (papal) pardons or indulgences.” Surely, a president

could regard himself as the ultimate salesman? In another context, many English speakers use

the phrase “pardon” or “pardon me” interchangeably with “sorry” when they mean to express a

polite apology for a mild transgression, such as bumping into another on an elevator. There is no

current indication that President Trump intends a “pardon” as his way of saying he’s “sorry” for

any act or omission.

The Department of Justice maintains an Office of the Pardon Attorney. Typically this

office processes and reviews the many requests for “executive clemency.” The website for the

Office of Pardon Attorney contains a lengthy FAQ section about executive clemency, eligibility

and procedure. Of note that there is no FAQ devoted to the topic of self-pardon!


If you are interested in learning more about this, please contact us at 303.477.8787 or email us at info@kayebushlaw.com.