Can the President Self-Pardon?

By Nick Levinson

Does the President have the Constitutional right to pardon himself? It would likely be political suicide, but does the legal power even exist?

This may be moot even before the inauguration of a new President. If the only remedy is impeachment and a self-pardon is issued very late, impeachment is unlikely even to begin. But another scenario has been suggested: The President could resign an hour, or some other brief time, before the next President takes office, thereby creating a vacancy that would be filled by the just-resigned President’s Vice Presidemt, who, as President or acting President, could pardon the just-resigned President.

UPDATE: In the waning days of President Trump’s Presidency, reportedly he has been asking about self-pardoning. That sounds to me like he already asked then-Vice President Pence to agree to pardon him (Trump) if he resigned a bit early, and probably tried to give Pence a reason not to refuse (as then-President Nixon did to then-Vice-President Ford), but Pence refused. I don’t know if Pence had any discussion, but it seems unlikely he didn’t, and therefore highly likely he refused in advance. I wouldn’t want Pence to become President for any amount of time after Trump’s term is over, but, if true, at least on this point, he has good political judgment.

The law is complicated. If this is to be answered by a Federal court opinion accompanying a ruling in a case about President Trump (reportedly this has never happened in U.S. history), the first step is that an actual case has to arise, at least in pursuit of a declaratory judgment of rights relative to a planned course of action, and the case has to meet requirements such as for standing and ripeness. If the case advances to where the Constitutional law is to be applied to an intended pardon, the court looks first to the plain words of the Constitution and tries to apply the plain words to the facts, such as the content of the pardon. If the plain words of the Constitution are enough to answer the legal question, then the case is decided on that basis.

But if a party persuades the court that the plain words are not clear enough for the facts at hand, then the court may look to the intent or the purpose of the law. In the case of the Constitution, that means searching for the intent of the Framers of the Constitution. That generally means studying The Federalist Papers, which were written in 1787–1788, about the time the Constitution was being drafted and adopted as law, and studying the pre-existing law with which the Framers would have been familiar, especially the common law of England reaching back through several centuries and possibly also the earlier Roman customary law. I don’t know what those bodies of law said on point.

Traditionally, assuming this isn’t just a modern impression shaped by fairy tales, the historical context is of a monarchy or autocracy in which no one was convicted except by the monarch. A king often governed only a small number of square miles; another monarch governed the next territory. So, the monarch could know everyone in their kingdom and could personally handle many matters. Eventually, as monarchs on average each governed a larger population, the monarchs delegated many of those decisions. But also part of the context was the belief that the monarch gained his power from a deity who could do no wrong, so that the monarch probably could do no wrong. If the monarch could do no wrong until her or his performance was awful, at which point execution could follow, that makes convicting the monarch of a crime during their term of service difficult or impossible. If it is impossible, pardoning the monarch for an offense already committed is legally unnecessary. If a conviction for an offense committed before or during the monarchical service could be obtained after the monarch left office but the monarch never has to leave office while alive (and if the dead cannot be convicted), pardoning the monarch for a possibility of an offense may be unnecessary or may imply an intent to leave office while alive, such as by abdication; that is a more difficult case.

A change was necessary: either recognition that the process of conviction was human and therefore susceptible to error, which could occur once the holder of divine power was no longer a convicting authority, or recognition that a convicted person was more valuable than the conviction admitted but the value could not be realized unless the conviction were removed. In either such case, a pardon, especially one not requiring litigation, could be useful and might have come to exist. Error could be resolved through relitigation, so the point of allowing pardoning as a remedy for error is to give the reviewer convenience.

Thus, the issue at the fork in the road is either convenience of the monarch or uniform application of the rule of law. This fork may well have appeared more than once and been decided differently at different times and in different older kingdoms within England.

Precedent may also be found in the conduct of the first U.S. Presidency and the debates and decisions of the first U.S. Congress.

So, the answer may be opaque. There may be sound arguments in law for letting Trump self-pardon or not.

Politically, of course, whether to self-pardon is clear to most people.