This article originally appeared in the January 10, 2021 Concord Monitor.
Will he or won’t he? Pardon himself, that is.
The last president who considered pardoning himself, so far as we know, was Richard Nixon. However, according to an August 4, 1974, Justice Department opinion, “the fundamental rule that no one may be a judge in his own case” means that the President cannot pardon himself. Nixon decided not to take the risk and chose to resign and hope for the best. Thanks to his successor, Gerald Ford, that worked out.
Article II of the Constitution gives the president “Power to grant reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” This was not a new idea. The Founding Fathers simply constitutionalized a power long held by the Crown of England. According to Blackstone, the 18th century authority on common law, “The effect of a pardon is to make the offender a new man.”
In July 1865, soon after the assassination of President Lincoln, President Andrew Johnson pardoned an Arkansas lawyer named A.H. Garland for the crime of participating in the Rebellion against the United States, an offence that had kept him from practicing law. In the 1866 case called Ex Parte Garland, the Supreme Court said that the pardon power “extends to every offence known to the law,” bestowing upon the President the “benign prerogative of mercy.” So, thanks to Johnson’s signature on a piece of paper, Garland was, at least according to Blackstone, a “new man,” once again free to practice law.
President Trump has exercised this power mostly for his friends and political henchmen, pardoning not only Michael Flynn, who had twice pleaded guilty to lying about his contacts with Russians, but also the likes of Roger Stone, Paul Manafort, his son-in-law’s father, former congressmen who committed misuse of campaign funds and insider trading, and Blackwater security guards who killed 14 Iraqi civilians. These pardonees had all been charged and convicted.
Trump claims he has the “absolute right” to pardon himself, which reminds me of Richard Nixon telling David Frost in one of their televised interviews that “when the president does it, that means that it is not illegal.” The Supreme Court would undoubtedly reject that wrongheaded view, as it did last July in Trump v. Vance, when the Court held that Trump, like “every man,” has no immunity from a grand jury subpoena.
The recent disclosure that New York authorities have retained forensic accountants to assist them in their investigation of Trump and various Trump entities shows just how serious they are. However, whether Trump is at risk of federal prosecution is another matter, and the Biden justice department may conclude that pursuing him for obstruction of justice or other possible federal offenses would probably do more harm than good. Such a decision, like Ford’s pardon of Nixon, would have no shortage of naysayers but would nonetheless be defensible.
A self-pardon will not impede the State of New York from moving ahead, but without a pardon at the federal level, Trump faces a risk starting on January 20, 2021, if anything more serious after the sorrowful events at the Capitol building on January 6. In light of calls for his resignation and condemnations from across the political spectrum, the likelihood that Trump will try to pardon himself has moved from a distinct possibility to a near inevitability. In that event, the Biden administration will face a dilemma.
Doing nothing could be seen as a tacit admission that a self-pardon is constitutional. Doing something, on the other hand, would subject the country to years of litigation, beginning with a court challenge from Trump based on the pardon. And who knows, he might win that challenge, turning what might otherwise be considered a yellow light for future presidents into a green one.
There are both practical and legal reasons for Trump to pause before he hits the “self-pardon” button. Just as it is better not to poke a bear, so the wiser course may be to leave well enough alone.
In Burdick v. United States, decided in 1915, the Supreme Court ruled that for a pardon to become effective, the pardoned person must accept it. And, the Court added, a pardon carries with it “an imputation of guilt, acceptance a confession of it.” Whereas Burdick was being investigated for a specific offense, making the “imputation” and “acceptance” somewhat tangible, just how the Court’s language would apply in Trump’s case is murky at best.
There are various arguments regarding the invalidity of a presidential self-pardon. One is that an “originalist” view, looking at what the Framers had in mind, might conclude that since “the King can do no wrong” whereas a president can, the power to pardon is necessarily limited to others. The constitutional word “grant,” suggesting something given by one person to another, may provide some etymological support.
To this one might add the Court’s requirement that anyone receiving a pardon cannot simply remain passive. Under the Burdick case, a self-pardon would become effective only if Trump were to “accept” it and thereby admit wrongdoing. That, alone, looks like a deal-killer, given what we know about Donald Trump.
Finally, there is the “fundamental rule” that no one can be his or her own judge—”nemo judex in causa sua.” Those words are not in the Constitution, but they are an essential component of the rule of law. And if, as the Court has said, not even the President is above the law, then that ancient axiom may yet be the strongest argument against allowing the president to pardon himself.