CAN THE PRESIDENT PARDON HIMSELF?

The questions of whether sitting Presidents of the United States (“POTUS”) can be indicted or pardon themselves has been floating around for a long time. There are legal arguments on both sides of each and while I believe that a sitting president can be indicted, I will leave that question for another time. As for his ability to pardon himself, I believe the clear answer is, “NO.”

When interpreting Constitutional meaning, just as in statutory interpretation, we begin with the clear words of the Constitution. Unfortunately, the Constitution is not clear on this point, but there are several reasons why it appears to be forbidden.

First, the clear language of the Constitution in Article II, §2 states, in pertinent part, “. . .  he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” There is only one kind of “impeachment;” that of “federal officers,” of which the President is one. It is generally agreed, therefore, that POTUS cannot prevent or overturn his own impeachment. The limitation on that power, however, highlights an underlying theme of the Constitution and its drafters; that no person is above the law. While Article II, §2 does not specifically deny POTUS the ability to pardon himself, such absence neither implies nor creates approval.

We must remember why we have a Constitution. It was not long before it was drafted that the colonies were ruled by the British Crown. It was, inter alia, the failure of the Crown and Parliament to take the welfare and desires of the colonists (all British citizens) into consideration, taxation without representation, and the charging of individuals with crimes for which the verdicts were directed by the Crown that forced the American Revolution. The drafters were understandably worried about the emergence of a central government that was too strong, and so the entire purpose of the Constitution was not to grant broad, general powers to the new federal government, but to limit its powers, vis-à-vis the states.[1]

With that understanding, it is clear that the farthest thing from their minds was to create a king in the United States. Yet, if POTUS could pardon himself and govern by Executive Order (as Trump has done since Congress has largely abdicated its power to him), it would have created an office that made its holder politically, nearly omnipotent, and destroyed the very checks and balances the Constitution created. His actions would stand above the law, from which there would be no recourse. Such an idea is rooted in the ancient concept of sovereignty wherein the Sovereign (e.g. the King) was, in fact, above he Law because he or she was the law. In the United States of America, it is the individual citizen who is sovereign.

The combination of Trump’s continued government by fiat (“edict”) and the ability to do so without constraint because of an unlimited pardon power would effectively make him an elected king; the thing the drafters feared the most. Hence, it is clear; taken as a whole, the purpose of the Constitution is to limit federal powers, not enhance them and granting POTUS the power to judge, then pardon himself must be held to be constitutionally invalid.

[1] See Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”