Trump can’t par­don him­self

The Washington Post Sunday - - SUNDAY OPINION - BY LAU­RENCE H. TRIBE, RICHARD PAINTER AND NOR­MAN EISEN

Can a 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. Or the pres­i­dent might be im­pressed by the de­fen­dant’s sub­se­quent con­duct and, us­ing pow­ers far ex­ceed­ing those of a pa­role board, might is­sue a par­don or com­mu­ta­tion of sen­tence.

Other eq­ui­table con­sid­er­a­tions could also weigh in fa­vor of le­niency. 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.

Or a pres­i­dent may con­clude that even if a per­son may have com­mit­ted a crime, he was act­ing in good faith to pro­tect the na­tional in­ter­est; Pres­i­dent Ge­orge H.W. Bush par­doned for­mer de­fense sec­re­tary Casper Wein­berger in the Iran-con­tra af­fair in part for this rea­son.

In all such in­stances, how­ever, the pres­i­dent is act­ing as a kind of su­per-judge 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 foun­da­tional case in the An­glo-Amer­i­can le­gal tra­di­tion is Thomas Bon­ham v. Col­lege of Physi­cians, com­monly known as Dr. Bon­ham’s Case. In 1610, the Court of Com­mon Pleas de­ter­mined that the Col­lege of Physi­cians could not act as a court and a lit­i­gant in the same case. The col­lege’s royal char­ter had given it the au­thor­ity to pun­ish in­di­vid­u­als who prac­ticed with­out a li­cense. How­ever, the court held that it was im­per­mis­si­ble for the col­lege to re­ceive a fine that it had the power to in­flict: “One can­not be Judge and at­tor­ney for any of the par­ties.”

The Con­sti­tu­tion em­bod­ies this broad pre­cept against self-deal­ing in its rule that con­gres­sional pay in­creases can­not take ef­fect dur­ing the Congress that en­acted them, in its pro­hi­bi­tion against us­ing of­fi­cial power to gain fa­vors from for­eign states and even in its pro­vi­sion that the chief jus­tice, not the vice pres­i­dent, is to pre­side when the Se­nate con­ducts an im­peach­ment trial of the pres­i­dent.

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 rec­og­nized as le­git­i­mate. Even the pope does not par­don him­self. On March 28, 2014, in St. Peter’s Basil­ica, Pope Fran­cis pub­licly kneeled be­fore a priest and con­fessed his sins for about three min­utes.

Pres­i­dent Trump thinks he can do a lot of things just be­cause he is pres­i­dent. He says that the pres­i­dent can act as if he has no con­flicts of in­ter­est. He says that he can fire the FBI direc­tor for any rea­son he wants (and he ad­mit­ted to the most out­ra­geous of rea­sons in in­ter­views and in dis­cus­sion with the Rus­sian am­bas­sador). In one sense, Trump is right — he can do all of these things, although there will be le­gal reper­cus­sions if he does. Us­ing of­fi­cial pow­ers for cor­rupt pur­poses — such as im­ped­ing or ob­struct­ing an in­ves­ti­ga­tion — can con­sti­tute a crime.

But there is one thing we know that Trump can­not do — with­out be­ing a first in all of hu­man his­tory. He can­not par­don him­self.

Lau­rence H. Tribe is the Carl M. Loeb University Pro­fes­sor and Pro­fes­sor of Con­sti­tu­tional Law at Har­vard Law School. Richard Painter, a law pro­fes­sor at the University of Min­nesota, was chief White House ethics lawyer for Pres­i­dent Ge­orge W. Bush from 2005 to 2007 and is vice-chair of Ci­ti­zens for Re­spon­si­bil­ity and Ethics in Wash­ing­ton (CREW). Nor­man Eisen, a se­nior fel­low at the Brook­ings In­sti­tu­tion, was chief White House ethics lawyer for Pres­i­dent Barack Obama from 2009 to 2011 and is chair of CREW.

BILL O'LEARY/THE WASH­ING­TON POST

Pres­i­dent Trump on Thurs­day in Wash­ing­ton.

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