The President's Pardon Power: Can They Pardon Themselves?

The question of whether a president can pardon himself has been a subject of debate in the United States for decades. While some legal scholars argue that the president's power of pardon is broad enough to include self-pardoning, others contend that it would violate the fundamental principle that no person can be a judge in their own case. The issue has resurfaced in recent years, with some presidents claiming the right to pardon themselves while others have tried to void pardons granted by their predecessors. With no clear case law on the matter, the debate surrounding presidential self-pardoning continues to be a complex and controversial topic in American politics and constitutional law.

The president's power of pardon

However, the president's power of pardon does not extend to self-pardon. The legal principle that "no person may be a judge in his or her own case" underpins this restriction. This principle was established over three centuries ago in Anglo-American law and was invoked by the Supreme Court to prevent conflicts of interest among public officials. The Department of Justice (DOJ) has opined that the president cannot pardon himself, and while this opinion is not binding in courts, it provides compelling reasoning that a self-pardon would constitute an abuse of the Constitution and a violation of the pardon power.

The president's pardon power is also constrained by obstruction laws, which prohibit the use of bribery or corrupt persuasion to hinder a criminal investigation. Promising a pardon to prevent a witness from cooperating with an investigation would fall under obstruction. Additionally, the pardon power cannot be used to prevent courts from enforcing orders protecting constitutional rights. For example, pardoning an individual held in contempt of court would subvert the judiciary's ability to enforce its orders and make a "mere mockery" of the judiciary's constitutional powers.

While there is no case law on the question of self-pardon, legal scholars and the prevailing opinion suggest that the president can pardon himself. However, if a president were to issue a self-pardon, it could be challenged in court, and the courts would likely follow the reasoning of the DOJ opinion that a self-pardon is invalid. Ultimately, the president's power of pardon is broad but subject to constitutional constraints, and self-pardon is not within the scope of this power.

Self-pardon legality

The legality of a presidential self-pardon in the United States is a highly contested issue. While some legal scholars and presidents have asserted that the president has the absolute right to pardon themselves, others, including the Department of Justice (DOJ), argue that the president cannot pardon themselves.

The argument against self-pardon stems from a legal principle established in Anglo-American law centuries ago, which states that no person may be a judge in their own case. This principle was invoked by the Supreme Court to prevent conflicts of interest among public officials. The DOJ, in an opinion issued shortly before President Nixon's resignation, concluded that the president cannot pardon himself under this rule. This opinion is not legally binding, but it provides a compelling rationale that a self-pardon could be challenged in court as an abuse of the Constitution and a violation of the pardon power.

On the other hand, supporters of self-pardon argue that the president's power of pardon is broad and that there is no explicit case law prohibiting self-pardon. President Trump, for example, claimed that he had the absolute right to pardon himself. However, these claims have been disputed, with legal scholars pointing out that the president is not above the law and cannot exempt himself from criminal liability.

The issue of self-pardon has significant implications for the separation of powers and the checks and balances within the US government. While there is no definitive ruling on the legality of self-pardon, it is clear that the power of pardon is not unlimited and is subject to constitutional constraints from all branches of government. The Supreme Court has held that pardons cannot be used to obstruct justice or violate certain federal criminal laws, such as bribery or corruption.

Pardoning and bribery

The US Constitution grants the president broad powers of pardon, but there is debate over whether this power extends to pardoning oneself. The prevailing opinion is that a president can pardon themselves, and President Donald Trump asserted that he had the "absolute right" to do so. However, others argue that self-pardon would conflict with the constitutional requirement that the president faithfully execute the laws. The issue of presidential self-pardon was raised during the Nixon administration, and the Department of Justice (DOJ) concluded that a president cannot pardon themselves based on the legal principle that no person may be a judge in their case. This DOJ opinion is not legally binding, but it provides a compelling argument that a self-pardon could be challenged in court as an abuse of the Constitution.

The question of pardoning and bribery came into the spotlight during the Trump administration, with the Justice Department investigating allegations of a "bribery-for-pardon" scheme at the White House. The investigation was triggered by a court filing that revealed discussions between Trump and his personal lawyer, Rudy Giuliani, about a potential "pre-emptive pardon." The document also suggested the involvement of lobbyists and political contributions in exchange for pardons, with media reports indicating that Trump was considering sweeping pardons before leaving office. While the court filing did not name individuals, the investigation raised concerns about potential corruption and abuse of power.

Bribery, as defined by law, involves the offering or giving of any undue advantage or gift to influence the conduct of a person in an official or public capacity. It can take many forms, including money, goods, rights, property, or privileges. In the context of pardoning, bribery could occur if an individual or organization offers something of value to the president or their associates in exchange for a pardon or reduced sentence. This would constitute a criminal act of corruption and an unethical abuse of power.

The investigation into the alleged "bribery-for-pardon" scheme at the White House highlights the potential for abuse of the presidential pardon power. While the specifics of the investigation remain sealed, it underscores the importance of upholding ethical standards and the rule of law in the exercise of presidential pardon authority. It also brings to light the potential consequences of such actions, including criminal charges and damage to the integrity of the presidency.

Supreme Court's stance

The Supreme Court has held that the president is "of the people" and subject to the law, and therefore, no president is above the law. The Court has also made it clear that no man can exercise fair judgment over himself. This is based on the due process principle articulated by James Madison that "no man is allowed to be a judge in his own case, because his interest would certainly bias his judgment".

The Supreme Court's stance on presidential self-pardoning is informed by the understanding that the president's power to pardon is broad but not unlimited. While Article II, Section 2 of the Constitution grants the president extensive clemency powers, it does not explicitly address the act of self-pardoning. The Supreme Court has emphasised that the pardon power cannot be utilised to obstruct justice or as part of a bribery scheme. Doing so would violate federal criminal laws and constitute unlawful behaviour.

The Court has also addressed the issue of contempt of court, asserting that pardoning an individual held in contempt would undermine the judiciary's constitutional powers. This highlights the Court's recognition of the judiciary's independent role in prosecuting contempt cases without interference from the executive branch.

Additionally, the Supreme Court has reinforced the principle that the nation's presidents are not akin to monarchs. They are subject to the law and cannot place themselves above it through self-pardoning. This stance aligns with the constitutional principle of a government of laws, not of men, further emphasising the Court's position that the president is accountable to the legal system.

While the Supreme Court has not directly ruled on the legality of presidential self-pardoning, its stance on related issues suggests that it would likely view self-pardoning as a violation of constitutional principles and the separation of powers.

Historical context

The historical context of the presidential self-pardon debate is rich and dates back to the early days of the American nation. The power of pardon itself is rooted in English common law, with the first appearance of the concept recorded during the reign of King Ine of Wessex in the seventh century.

The framers of the United States Constitution, aware of this historical context, included the presidential pardon power in Article II, Section 2, which states that the President has the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The framers deliberately separated the judicial function of government from the pardon power, addressing concerns that the power of judging and pardoning should not be vested in the same person or entity.

The issue of presidential self-pardon first came to the fore during the Watergate scandal involving President Richard Nixon in 1974. Nixon's lawyer suggested that a self-pardon would be legal, but the Office of Legal Counsel (OLC) issued an opinion that concluded that a president may not self-pardon based on the principle that no one may be a judge in their own case. This opinion is not legally binding, but it holds sway with legal scholars and sets a persuasive precedent.

The debate resurfaced in 1998 during the impeachment of President Bill Clinton. In 2017, President Donald Trump tweeted about his "complete power to pardon," sparking further discussion about the limits of presidential pardon power and the possibility of self-pardon. Trump again raised the issue in 2018, claiming he had the "absolute right to PARDON" himself. The legal community remains divided on the matter, with some scholars arguing for the president's ability to self-pardon due to minimal restrictions on pardon power in Article II, while others contend that self-pardon would conflict with established legal principles and the Constitution's separation of powers.

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