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
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
“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!