By Brian C. Kalt, Professor of Law at the Michigan State University College of Law
Media reports that President Trump has asked his lawyers whether he has the power to pardon himself have re-opened a debate I have been engaged in since the 1990s. Can a president pardon himself? The short answer is that he can certainly try, but that it might not—and should not—work.
The reason for uncertainty is that no president has ever tried to pardon himself, so no court has had the opportunity to decide the question. Until a president purports to pardon himself, and until a federal prosecutor tries to prosecute him anyway, we cannot know what the courts think about this.
Some people doubt that a president would ever want to pardon himself, because they think that one must be guilty to be pardoned, and the president would not want to admit his guilt. But that is a political point, not a legal one; presidents are not legally precluded from being shameless. More importantly, the premise of this argument is simply wrong. While pardons usually are used to forgive the guilty, they can also be used to exonerate the innocent. If he so pleased, the president could declare his self-pardon to be in the latter category.
Another misconception is that people must be charged or convicted before they can be pardoned. If that were so, and because there is serious doubt as to whether presidents can be prosecuted while in office, the president would have no opportunity to pardon himself. But this is not so—pardons can be preemptive. The most prominent example is President Ford’s 1974 pardon of President Nixon, who had not been indicted, but there are other such cases. Legally, then, there is nothing to stop a president from at least trying to pardon himself.
That still leaves the question of whether a self-pardon would be valid. While the result is hard to predict, the legal arguments on both sides are not. The president’s lawyers would note that the Constitution gives presidents the power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” They would note the two explicit exceptions here—pardons cannot touch state proceedings or congressional impeachments—and infer that the president’s power is otherwise unlimited. In other words, because the Constitution does not explicitly prohibit self-pardons, self-pardons are allowed.
The prosecutor would have excellent responses, though. First, the pardon power is limited by the meaning of the word “pardon” itself. For instance, a pardon can only cover things the recipient has already done. The Constitution does not spell out that limit, but because it is implicit in the definition of a “pardon,” courts have enforced it. The courts could enforce something similar regarding a supposed self-pardon. The prosecutor would argue that the word “pardon” inherently means something bilateral. By analogy, consider the word “donate,” which has the same Latin root as “pardon,” and which must involve a separate giver and receiver. It makes no sense to talk of donating a kidney or $100 to yourself. A self-pardon would make no more sense; it simply would not be a pardon.
Besides this definitional point, the prosecutor could cite the weighty legal principle that no one can be the judge in his own case. Just as a judge who is accused of a crime would have to let a different judge preside over his trial, a president would have to put his fate in the hands of a successor president, not decide his own case.
Finally, there is historical evidence from the 1787 Constitutional Convention. The Framers considered barring pardons for treason, because they worried about presidents pardoning their own minions for traitorous plots in which the president himself was involved. But James Wilson convinced the convention not to limit the pardon power in this way, noting that in such a case the president could be impeached and prosecuted. It is unlikely that Wilson’s argument would have prevailed if anyone present had thought that presidents could pardon themselves.
To be sure, Wilson’s argument would have made sense even if self-pardons are valid. An objectively shameless self-pardon could spur the House of Representatives to impeach the president. Moreover, the self-pardon could itself be a crime. Just as a president who pardoned someone in exchange for a bribe could be prosecuted for such corruption, a self-pardoning president might be susceptible to a prosecution after leaving office for obstructing justice. So whether or not self-pardons are valid, a president issuing one could be impeached and prosecuted for it.
Presidential pardons are an important part of our constitutional system of powers, checks, and balances. A self-pardon would test several others parts of that system. As interesting as that might be, here’s hoping that it never happens.
For more on presidential self-pardons, see Professor Kalt's book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies