By Bernadette Meyler, Carl and Sheila Spaeth Professor of Law at Stanford Law School
On Saturday, President Trump claimed vaguely that “all agree the U.S. President has the complete power to pardon.” Recent discussions about whether Trump might pardon his relatives as well as himself have also largely focused on the president’s power, examining his formal constitutional authority to pardon, mechanisms for limiting that authority, and the potential legal consequences of a pardon.
These are the wrong questions to be considering. Rather, we should be thinking about the consequences of such a pardon for our democracy, and, in particular, for our constitutional democracy. The Founders dismissed fears about the incompatibility of the pardon power with democracy, relying largely on the force of extra-textual democratic norms to protect us. If those norms have eroded to such an extent that the Framers’ nightmare of corrupt pardoning could be realized, the consequences for our polity are grievous. Trump may indeed possess the raw power to pardon himself; but the question that should be foremost on Trump’s mind is whether such a pardon would be the final straw in bringing down his regime.
Pardoning has brought about constitutional crisis before—even under the English monarchy during the reign of King Charles II in the late seventeenth century. For many centuries, the power of pardoning was thought to rest in Kings and Queens—a “mark of sovereignty,” as political philosopher Jean Bodin called it in the age of French absolutism. Yet even then the specter of impropriety and injustice cast shadows over the use of pardoning. Bodin himself, expressing the view that the pardon would be best used to forgive injuries done to the monarch by his subjects, lamented “What can one hope for from a prince who cruelly avenges his own injuries and pardons others . . . ?”
Philosopher Immanuel Kant later claimed the sovereign’s power of pardoning was the “slipperiest” because “it must be exercised in such a way as to show the splendor of his majesty although he is thereby doing injustice in the highest degree.” Throughout history, many thinkers agreed that the best pardon was the one in which the King forgave injuries to himself—not ones he himself had committed. That understanding was known to (and embraced by) the Framers.
As they knew, a constitutional crisis followed King Charles II’s late seventeenth-century attempt to pardon the Earl of Danby, his Chief Minister. And that crisis ultimately resulted in one of the principal changes to the pardon power in English history, an alteration inherited by the American Constitution.
The story began when a letter from Danby to the French court, negotiating peace privately on behalf of King Charles, surfaced amidst the crisis of the Popish Plot (a purported conspiracy by Catholics invented out of whole cloth by Titus Oates). Enraged by Danby’s letter and by the prospect of foreign negotiations against the national interest, the House of Commons drafted articles of impeachment. These articles claimed both that Danby had traitorously negotiated with France without informing the Secretary of State or the Privy Council, and that he was complicit in the (feigned) papist intrigue.
Impeachment in seventeenth-century England carried not only removal from office but more grievous consequences, including fines and even death. Due to a dispute between the houses about the nature of the charges, proceedings were prorogued. Upon resumption, Danby conveniently produced a royal pardon explaining that all he had done was on royal instruction. He argued that this pardon barred the impeachment. The House of Commons condemned the pardon as illegal. Division between the houses, however, again thwarted consummation of the impeachment. More significantly, however, this episode accentuated the crisis of rule facing the Stuart Kings and prompted Parliament, in the wake of the Glorious Revolution, to force King William to agree that pardons could not be pleaded to impeachment through the 1701 Act of Settlement.
Even under a monarchical system, a perception of inappropriate pardoning resulted in popularly driven constitutional change. Many of the American Founders had faith that popular opinion would continue to constrain pardoning under the U.S. Constitution. On the eve of the American Revolution, William Blackstone opined in his Commentaries on the Laws of England that “in democracies . . . the power of pardon can never subsist; for nothing higher is acknowledged than the magistrate who administers the laws.” The Founders disagreed. James Wilson responded that the people instead were the highest authorities, with the Constitution right below them. They could reign in any abuses of the president’s pardon power.
Other members of the Founding generation relied on the restriction of pardons in cases of impeachment—a rule derived from the British system—to check any abuses of the pardon power. As Justice Joseph Story later explained in his Commentaries on the Constitution, this limitation was designed to “take from the president every temptation to abuse it in cases of political and official offences by persons in the public service.” According to Story’s view, due to this check, the president “cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.” What these defenders of the U.S. constitutional arrangement omitted from their account was the origin of the limitation in a prior constitutional crisis connected with pardoning.
The reputational consequences of pardoning within a democracy for those pardoning have made themselves visible many times in recent decades, from the uproar surrounding President Bill Clinton’s last-minute pardon of financier Marc Rich to presidents and other chief executives’ demonstrable chariness in recent years to issue pardons in any cases, even those at arms length.
The early history of the pardon power shows that constitutional crises can ensue from even the perception of corrupt pardoning of cronies. The visibility of the exercise of the pardon power and its appearance as outside the law render it still the “slipperiest” for the president to employ. Trump should not be considering whether he possesses the power to pardon himself but rather what the consequences of employing that power would be. And, if he does pardon in an attempt to remove himself or his close associates from scrutiny, the results might be even worse for him (and our constitutional democracy) than an admission of guilt.