Yesterday we looked at how Trump is corruptly using his pardon power to enrich himself. What we didn't really get into much was the debate over a self-pardon. Writing for the Washington Post, Southern Methodist University Law School professor Dale Carpenter did an OpEd for the Washington Post, No, The Constitution Does Not Allow Trump To Pardon Himself. Carpenter began by noting some of Trump's current woes, including the chance he night be charged in federal court on a range of charges related to the attack on the Capitol. Does he have the ability to pardon himself. Ultimately that's going to be decided by the Supreme Court, but Carpenter insists that neither history nor the structure of the Constitution allows any such thing. "In fact," he wrote, "such an action would erode foundational legal principles in our republican form of government. No person can be a judge in his own case. Nor is the president, unlike an absolute monarch, above the law."
He noted that "Article II of the Constitution gives the president 'Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.' A 'pardon,' issued from a properly vested governmental authority, relieves a person of the legal consequences of a criminal act. The power was borrowed from England, but as with many constitutional concepts, it has been adapted to the distinctive American context and does not even apply to state crimes. While the power is broad, it is not unlimited. For example, in Ex Parte Garland (1866) the Supreme Court interpreted it to apply only after the underlying offense has been committed. The main reason for King James II’s forced abdication, after all, was his attempt to exercise a power of anticipatory pardon. Even the royal pardon power did not encompass a license to disobey all law."
But American constitutional principles go further, confining executive power in ways that would have been alien to a monarchy. For example, an English sovereign’s term was lifelong. A king could not be prosecuted, so the question of self-pardon never arose. By contrast, the president is an executive for a defined term and enjoys only limited powers that are constrained by law, a written constitution and the other branches of government. A president is not immune to criminal prosecution after leaving office.
Some of the Founders worried about creating a kinglike pardon power. For example, if the president could hypothetically pardon his associates for treason (which is impeachable), Edmund Randolph warned the 1787 Constitutional Convention that “the president himself may be guilty. The Traytors may be his own instruments.” James Wilson reassured the delegates that “if [the president] be himself a party to the guilt he can be impeached and prosecuted .” With that assurance, the discussion ended.
Wilson’s reasoning assumed that the president could not pardon himself. It would not have quieted fears if the Founders thought he could simply excuse his own treason. While the delegates in 1787 did not specifically discuss the matter, self-pardons would have been as unimaginable as they were dangerous.
The “power to grant … pardons” is therefore a legal term of art that, in its historical context, should not include self-pardon. The notion grants the president something akin to a monarchical power, a governmental form against which the very founding of the United States was a rebellion.
The concept of the self-pardon also violates other foundational principles of the laws on which the country is based. Justice Chase wrote in Calder v. Bull (1798), "[Regarding] a law that makes a man a Judge in his own cause … [i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” In Federalist No. 10, James Madison contended, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” On this basis, the Office of Legal Counsel concluded in 1974 that the president cannot pardon himself.
Self-pardons are a particularly noxious form of self-dealing that undermine the rule of law itself. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution makes the United States “a government of laws, and not of men.” Not even a president is above the law.
Finally, there is an explicit textual limitation on the pardon power specifically relevant to Trump. Pardons cannot be granted “in Cases of Impeachment.” The dominant interpretation of this Impeachment Exception Clause is that it only prohibits a president from obstructing the impeachment process or shielding an impeached official from the consequences of a Senate conviction (e.g., removal from office and disqualification).
But might the Impeachment Exception Clause also be understood as barring an impeached president from pardoning himself? The Constitution says that an impeached official, including the president, can “be liable and subject to Indictment, Trial, Judgment, and Punishment” after Senate conviction (Art. I, Sec. 3).
Whatever the president’s power to shield other impeached officials from criminal prosecution, the best reading of the Impeachment Exception Clause is that he should not be allowed to pardon himself . Here’s why: The president is sui generis in our constitutional system. He is entrusted with mighty powers and unique obligations. The president “shall ’take Care that the Laws be faithfully executed.” (Art. II, Sec 3) Yet impeachment calls into serious question his ability to do so.
While the executive pardon power is broad, the Impeachment Exception Clause could be understood in a correspondingly broad way to provide a check on the president’s license to escape the consequences of his own lawlessness. This textual limitation on the pardon power could be interpreted as consistent with the Constitution’s structure, because it would reinforce the separation of powers among the three coequal branches. It would prevent the president from avoiding a Senate trial and future ramifications in legal proceedings overseen by the judiciary.
Trump’s conduct involves a “Case of Impeachment” (regardless of whether he is convicted by the Senate), and thus it would be excepted from the executive pardon power.
Let’s hope the president does not try to pardon himself. If he does, he may never be prosecuted, so the self-pardon may not be tested.
If he is prosecuted, the president has other possible defenses. But if our Constitution and legal traditions are followed, he should not be allowed to plead, “I beg my pardon.”
In an OpEd for the NY Daily News, ex-Republican Rick Wilson makes the important point that national unity and accountability for criminality are not at odds. The opposite, in fact-- "inseparable. Without accountability, unity will be an illusion, an invitation to further, deeper, more dangerous division. With accountability, the nation has a genuine chance to come together and move forward."
Now there is no unity for fascists-- no compromising with totalitarians, no negotiations. As this Twitter poll shows, most people understand that and understand why fascists have to be eradicated, not bargained with.
"One thing the Founders would have never expected," wrote Wilson, "was a physical attack on the members of [Congress] to be ordered by a president who had lost a free and fair election. The could never have imagined that members of the Senate would stand on the floor and actively promote insurrection. The last time it happened was at the start of the Civil War, and those members were rightly expelled from the body... Last week, House Minority Leader Kevin McCarthy attempted to block the impeachment of the president by claiming that this was a political game that would further divide the nation and that while the president may have incited the riot, now was not the time to push for impeachment. Only 10 bold members of the Republican caucus broke party lines to vote for impeachment. It was one of the most insulting, egregious, cowardly, anti-American acts in recent memory by a supposed leader in Congress. It ultimately didn’t matter, on Jan. 13, President Trump became the only president in U.S. history to be impeached twice by the U.S. House of Representatives. It was richly deserved."
The seriousness of this moment cannot be overstated.
Already, Republicans are taunting Democrats with the claim that a drive to impeach, remove and otherwise hold Trump accountable is at odds with Biden’s pledge to heal the nation, to end the bitter era of demonizations. This is turning history on its head, in real time.
There is no path to unifying the people of this nation as long as loyalty to party and fear of a weak, deranged man take priority over ensuring the safety and well-being of our Republic and our democratic processes. The wounds that have been inflicted can only be healed by holding those responsible publicly accountable with a punishment that reflects the severity of the transgression.
Sure, some on the fringes will only grow more furious with any move toward accountability, but the vast majority, those with a genuine interest in coming together, will understand that there is an underlying republic worth honoring, norms worth protecting, a Constitution worth defending.
This is not only about Trump.
By letting Ted Cruz, Josh Hawley, Ron Johnson and the rest of the Senate’s Sedition Caucus skate for their role in the conspiracy, the Senate Republicans are telling Americans they want impunity, not unity.
Senate Republicans giving Trump a pass for his fiery incitement to violence-- which came after a spate of spurious lawsuits and repeated attempts to strongarm Georgia officials into changing their recounted, certified vote totals-- aren’t interested in reconciliation; they’re fine with Trump and his allies inciting an insurrection and staging an attempted coup on our own government.
Five American lives were lost that day, based on the words, deeds, and plans of Trump and his dead-enders; if this isn’t grounds for impeachment and conviction, what is?
History will remember who stood up for America when our democracy was tested from within; they are the brave, the deserving, the leaders. But history will have a longer, and more brutal memory for the conspirators and cowards, too. Hawley, Cruz and the rest of their seditious claque should be censured and expelled from the Senate. They, too, swear an oath to the Constitution. They, too, broke it.