Can the President Pardon Himself?

The opinions expressed in this article are the author’s own and do not necessarily represent those of Civics Nation.

Just because the Constitution doesn’t explicitly say a president can’t pardon himself, that doesn’t mean doing so would be constitutional.
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There’s been a lot of discussion recently about whether President Trump has the power to pardon himself. Unfortunately, the Constitution doesn’t speak directly to this issue, but that doesn’t mean that such an action would be constitutional or that there’s ambiguity over its constitutionality. The concept of a self-pardon makes a mockery of our nation’s commitment to the Rule of Law and any such action would be considered unconstitutional by many lawmakers, politicians, and citizens.

Lawyers and judges often have to look outside the words of the Constitution itself to interpret the document. This is, in part, because the Constitution wasn’t written/ratified in a vacuum. It stems from hundreds and hundreds of years of legal precedent, British common law, history, and a story of political freedom going all the way back to the Magna Carta in 1215. As such, it’s built on certain foundational principles that our founders didn’t need to articulate explicitly. They are so fundamental and baked into the system that it would be outrageous to claim they didn’t exist.

One of these principles is that you can’t be a judge in your own case, a principle going back to early 17th century England. Days before Nixon resigned, the Department of Justice issued a memorandum concluding the President couldn’t pardon himself. It cited this principle. You can read that memo here.

Another one of these fundamental principles is the Rule of Law. We are a nation of laws, and not men. And as long as we continue to be, no one is above the law. Obviously some, including President Trump, don’t see it this way. Nixon didn’t either, and after the Special Prosecutor for the Watergate case subpoenaed Nixon’s tapes, Nixon’s lawyer moved to quash the subpoena saying the following to Judge Sirica, the judge overseeing the case: “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”

Suffice it to say, Judge Sirica ignored these words, denied Nixon’s motion, and ordered the President of the United States to turn over his tapes. Nixon appealed to the Supreme Court, but the Court unanimously upheld Sirica’s ruling, affirming our nation’s commitment to the Rule of Law and ordering Nixon to hand over his tapes. Nixon would comply, and then resign days later.

If you want a reason more firmly rooted in the text of the Constitution, look to the Take Care clause and the President’s Oath of Office. The Take Care clause states that the President must “take care that the laws be faithfully executed.” In other words, he has a duty to ensure that the laws be followed and lawfully administered. And the President’s Oath of Office requires that he will, to the best of his ability, “preserve, protect and defend the Constitution of the United States.”

The idea that the President can pardon himself for breaking the laws he is duty bound to follow and administer strains credulity. Stated another way, why would our founders have given the person they entrusted the most to follow and administer the laws the tools to avoid the legal consequences for breaking them?

The founders gave the President the pardon power for a variety of reasons, including most notably to correct injustice and to show leniency in the federal judicial system. But they also gave the President this power in order to help him negotiate an end to hostilities during times of rebellion and civil war by making it easier for rebels/insurgents to put down their arms. Alexander Hamilton talks about his justifications for the pardon power in Federalist #74, which I recommend reading.

Although the pardon power is obviously an important and expansive one, its purpose wasn’t to confer absolute powers to the President. Our founders understood the potential for a tyrannical presidency, and they devised all sorts of checks to protect us from it. With this in mind, the notion that they gave the President the power to pardon himself makes no sense.