Beg your pardon? No, you can’t do that

Laurence Tribe, Richard Painter Norman Eisen comment

and Can a US president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case”. We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.

The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. A president might choose to grant a pardon before prosecution of a person when the president believes that the prosecution is not in the national interest; President Gerald Ford pardoned Nixon in part for this reason.

In all such instances, however, the president is acting as a kind of superjudge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible.

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block. We know of not a single instance of a self-pardon having been recognised as legitimate.

- Tribe is Professor of Constitutional Law at Harvard Law School. Painter, a law professor at the University of Minnesota, was chief White House ethics lawyer for President George W. Bush from 2005 to 2007. Eisen, a senior fellow at the Brookings Institution, was chief White House ethics lawyer for President Barack Obama from 2009 to 2011.