Self-pardoning president would know no bounds

The presidential pardon power receives attention near the end of every president’s time in office because it is often in those closing days that controversial or otherwise noteworthy pardons are issued.

Article II, Section 2 of the United States Constitution endows the president with the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” Since the ratification of the Constitution in 1789, 43 of the 45 presidents have issued pardons. Presidents William Henry Harrison and James Garfield both died early in their terms and did not issue any. Andrew Johnson pardoned numerous former Confederates who rebelled against the United States. Gerald Ford pardoned former President Richard Nixon for any federal offenses “has committed or may have committed or taken part in” during his presidency. Jimmy Carter pardoned evaders of the Vietnam draft the day after he was inaugurated in 1977. No president however, has attempted to pardon himself.

Rumors have been swirling since the November election that Donald Trump is contemplating a self-pardon for any and all crimes for which he could be federally prosecuted when he leaves office. If the current president did issue a pardon for himself, it should be rejected by federal courts. That is not specific to him, but to any president who attempts to so abuse the power. Granting the president the authority to pardon him or her self would effectively legalize criminal behavior on the part of the president.

The Constitution does not limit to whom a president can issue a pardon.

The only limit in the text is that impeachments are not subject to pardons. The question is whether a self-pardon would be valid and recognized by a court. In order for that question to be answered, the president would have to pardon himself before leaving office, the Department of Justice, which handles federal prosecutions, would have to indict him and then the president would have to seek to enforce the pardon before a federal court.

The Department of Justice holds as its official position, having opined on the issue in 1974, just days before Nixon resigned, that, “under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”

Recognizing a “selfpardon” would do more than make the president the judge in his own case. It would in effect place a president above the law and beyond prosecution and punishment for criminal action, at least at the federal level. A rogue president could destroy federal property, commit murder on the high seas or in another federal jurisdiction, engage in an insurrection to maintain his own power or commit any number of federal offenses, and then immediately pardon himself before being removed from office. The impeachment process would still be available but it would not subject the president to criminal consequences.

A court is unlikely to sanction such a self-serving, dictatorial use of the power. Trump will not be in office much longer. But a future president with the ability to self-pardon might stop at nothing to maintain or expand his or her own power.