The conservatives’ case against presidential self-pardons
The recent run of pardons for close allies of President Donald Trump has raised the specter that the president will carry out his threat to issue a self-pardon before Inauguration Day. Feared by liberals, the act of self-pardon in fact should be a far greater affront to who prize our constitutional traditions. For the very best arguments against self-pardons are those rehearsed by conservatives — including on the Supreme Court.
This may seem counterintuitive: Defenders of the self-pardon power lean first upon the sweeping language of the Constitution. Making an interpretive move associated with justices such as Antonin Scalia, they point simply to the text. With limpid brevity, it speaks of “offenses against the United States,” without excluding the president’s own crimes. Without qualifications, the pardon power appears to admit of no exceptions.
This is a rookie mistake.
No one thinks that the First Amendment, which speaks to “Congress” alone, allows the president free reign to lock dissenters up for their views. It has been conservatives, and not liberals, who have insisted that the text of the Constitution be read in light of structural principles of limited government. They have insisted on a rigorous application of federalism and separation of powers principles — not mentioned in the text — as necessary adjuncts to a government well constrained by law.
Deeply embedded structural principles even defeat clear text. For example, the text of the Constitution explicitly allows federal courts to hear private lawsuits against states from Alabama or Wyoming. But conservative justices have rejected such suits on the non-textual theory of “sovereign immunity,” and even expanded this immunity to state courts.
Is there a kindred structural principle that prevents self-pardons? The Nixon Justice Department thought so. Four days before Nixon fled the White House, it issued a memo explaining that self-pardons conflicted with “the fundamental rule that no one may be a judge in their own case.”
Turn to the Supreme Court today, and you will find that the most vigorous advocates of this “fundamental” principle are conservative justices.
The most recent occasion for their rallying to this principle is a 2019 opinion in a case called Kisor v. Wilkie.
At issue in Kisor was a technical question of administrative law, which covers the agencies that do the lion’s share of the federal government work. A Vietnam War vet was denied benefits by Veterans Affairs. The agency relied on an interpretation of one of its own rule to do so. The Court took up the case to answer the question: Do government officials have the power to interpret the rules they themselves have promulgated — and must courts defer to their judgments?
A bitterly divided Court narrowed but declined to rule out entirely that power. Perhaps the most powerful opinion was from Justice Neil Gorsuch. His opinion will likely become the law now that Justice Amy Coney Barrett is on the bench, and the conservative majority is clearer. Gorsuch warned that whenever “political actors” are free to “adopt and enforce” laws, and then avoid judicial review, “the rule of law begins to bleed into the rule of men.” As The Wall Street Journal explained, Gorsuch was standing up against the “concentration of power” that resulted when the executive could “write, interpret and enforce its own rules.”
A self-pardon has precisely the same effect — albeit for the far more important class of criminal laws. These constrain the president from self-dealing with official power, the use of surveillance and violence against political foes or even selling secrets to foreign powers. A president need only reserve a self-pardon for the end of his or her term, and none of these laws will have any bite. For presidents cannot be prosecuted during their term, consistent with present Justice Department policy.
Knowing that an eve-of-inauguration day self-pardon awaited, a president simply has no reason to fear the criminal law. This includes, of course, potentially illegal efforts to subvert election outcomes that go against his interests.
Worse, judicial orders in constitutional cases are enforced through injunctions, which are only binding thanks to contempt sanctions. Yet were the president sued for an unconstitutional policy, there would be scant reason to comply if, at the end of the day, anyone held in contempt could simply be pardoned. constitutional review of executive action would be at the president’s whim.
Nor would the remedy of impeachment have much effect. Impeachments lead to expulsion from office only, not prison. A president fearing impeachment will simply pardon herself on the day before being turfed out.
This practical result is perhaps the most important conservative ground for resisting a pardon: If Gorsuch’s worries about agencies are well founded, the advent of the self-pardon would be a sea change in our constitutional order. It would release the executive from the constraints of law that the framers plainly intended to cast on. It creates something new, and something uniquely dangerous to our republic.