//  6/18/18  //  Commentary

French monarchs and emperors from the Age of Absolutism through the early 19th century were quite sure that they were the highest authority, above the law.  Statements like “L’etat, c’est moi” ("I am the state") or “Je suis le pouvoir constituant” (“I am the constitution-making authority”) capture an attitude wholly at odds with America’s founding history.  Think of the objections to the unchecked exercise of government power that motivated American history – the original tea party, the Declaration of Independence, and the Constitution of 1789. 

For all the critiques one might make of it — tolerating and protecting slavery being one — this Constitution and the institutions of federal government that it created helped secure the rule of law in the United States.  And a basic principle of the constitutional rule of law is that no person, not even the President, is above the law.

In one of the Supreme Court’s earliest and most famous decisions, Marbury v. Madison (1803), Chief Justice Marshall declared that “The Government of the United States has been emphatically termed a government of laws, and not of men,” and concluded that Marbury was entitled to receive his commission of office, even though the new President had directed that it not be delivered to him.  In the Steel Seizure Case (1952), the Court held unconstitutional President Harry S. Truman’s order temporarily nationalizing the steel industry, notwithstanding the claim that the President’s Commander-in-Chief power supported the order so as to secure the steel needed to make weapons for the Korean war.   In the 1970s, the United States re-elected Richard Nixon as President, by a wide popular as well as electoral majority.  Notwithstanding his deep democratic bona fides, the Court thereafter held, unanimously, that President Nixon could not refuse to comply with a subpoena to produce tapes related to grand jury indictments of others for crimes. See United States v. Nixon (1974).   

These cases, along with the entire course of American constitutional history, and the effort to build a republic of laws that would resist the grave faults of European monarchies and empires, stand against the current President’s claim that he can pardon himself.  For the power to pardon oneself would afford an extraordinarily abusive tool, enabling a person holding the office of president to engage in clear criminal activity with impunity, confident that he could prevent criminal prosecution by simply pardoning himself.  Targeting of political opponents by releasing confidential information in violation of criminal laws protecting the privacy of tax returns; committing treason; espionage against the United States; selling the country’s dearest secrets to the enemy; obstructing justice by lying to federal investigators; all of these actions, which are federal crimes, could be committed with impunity.  Such a state of affairs is the opposite of “a government of laws, not men.”  

No President threatened with criminal investigations, including Presidents Nixon and Clinton, has taken such an unprecedented action, even though each had reason to fear criminal prosecution.  President Nixon’s own Department of Justice, after studying the issue, concluded “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.” The very language of the Constitution’s text, authorizing the President to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” implies the bestowal of something on someone else, usually by one with more authority.

Modern presidents wield broad powers, to be sure, and they may push the boundaries of their authority to respond to sudden crises and challenges.  But it is a significant step beyond that to allow a President to grant himself impunity, placing himself above any and all federal criminal laws for any and all violations committed up to the time he leaves office. This is a frightening specter, one simply not compatible with the Constitution’s demand that the President “take Care that the Laws be faithfully executed.”

For all who are devoted to country and Constitution, the idea of a self-pardon should be an anathema. It is against logic and the weight of history and law.  It is a profoundly anti-constitutional idea, one inconsistent with founding commitments to the rule of law.


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