[Note: we’ll leave to a later – and hopefully mercifully shorter 😉 – post commenting on the recently-published 100+ page legal article asserting that former President Donald Trump is barred from running for the presidency under Section 3 of the Fourteenth Amendment.]
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
- Article II, Section 2; The Constitution of the United States of America
University of California, Los Angeles law professor Richard L. Hasen, a leading expert on election law, has reportedly opined that the Constitution does not bar anyone indicted, or convicted, or even serving jail time, from running for president and winning the presidency. I’ve recently had a couple of close friends ask me if I thought that former President Donald Trump could pardon himself if he is inaugurated president in January, 2025, after having been convicted on any of the multiple federal charges he now faces. I’ve heard a number of media talking heads pointedly note that because the most recent indictment against Mr. Trump in Fulton County, Georgia, involves violation of Georgia state law, he couldn’t pardon himself if convicted in that proceeding – from which I infer that these commentators believe that that Mr. Trump might well have the power to pardon himself of federal convictions if he reassumes the presidency.
While the Constitution’s vesting in the President of a seemingly unqualified pardon power for “Offenses against the United States” arguably provides a prima facie argument that if re-inaugurated president, Mr. Trump will have the power to pardon himself of any federal convictions, I will submit [of course, subject to my customary (and glaringly obvious 🙂 ) disclaimers (1) that I never dealt with Constitutional Law in my legal career and (2) that one of the pairs of sharp legal eyes that sometimes scan these pages with more experience on these issues may completely disagree]:
A president does not have the power to pardon him/herself of federal crimes. If called upon to rule, a significant majority of the Supreme Court will so hold.
Although there are undoubtedly other authorities that have opined on this issue, the opinion rendered by U.S. Acting Assistant Attorney General Mary Lawton on August 5, 1974 – three days before then-President Richard Nixon announced his resignation of the presidency – seems the most pertinent. Ms. Lawton wrote: “[Article II, Section 2 of the Constitution] raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” Ms. Lawton died at age 58 in 1993 after a distinguished career of public service. A link to her memorandum is immediately below.
Ms. Lawton’s reaction is of course the one we all had before we (cue the voice over of the late Rod Serling) … crossed over into the Trump Zone. That said, no Supreme Court, let alone this one, would be willing to base such a momentous decision upon a half-century old opinion written by an Acting Assistant Attorney General. This is where this note turns particularly geeky 😉 .
A number of the Court’s current conservative Justices are legal disciples of the late Associate Justice Anton Scalia, an adherent of “Originalism,” which Justice Scalia is reported to have described as, “The Constitution … means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
I would submit that the best authority for what the Constitution meant when it was adopted is The Federalist, a series of eighty-five articles written in support of the adoption of the Constitution by Alexander Hamilton, James Madison, and John Jay under the pen name, “Publius.” Thomas Jefferson, no friend of Mr. Hamilton’s, described The Federalist as “the best commentary on the principles of government which ever was written.”
Links to Federalist Nos. 69 and 74 are provided below; both were written by Mr. Hamilton on the proposed President’s Constitutional powers. Although Mr. Hamilton was a proponent of a strong federal government and an empowered President, he was at pains to reassure Americans – since the United States had only secured its independence from England and King George III a few years before — that the new Constitution would not anoint a new de facto King, but rather that the President’s powers would be more akin to those then possessed by the Governor of the State of New York. In No. 69, he wrote in pertinent part:
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is … no punishment to which he can be subjected without involving the crisis of a national revolution. …
The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? [Emphasis Added].”
Language of a quarter of a millennium ago is obviously challenging to parse. Mr. Hamilton was clearly stressing that a President, unlike the King of England, was not “sacred and inviolable,” and that, unlike a king, he could be “subjected” to “punishment” without a national crisis. In Mr. Hamilton’s comparison of the presidency to the New York governorship, he argued that from a practical political standpoint, the Governor had greater power than the President and noted that the Governor, if leading an aborted conspiracy against the government, might pardon his “accomplices and adherents”; there was no indication that the Governor could pardon himself. Furthermore, Mr. Hamilton noted that a conspiratorial President himself might be “incapacitated by his agency” (i.e., impeached and convicted in the Senate for his role in the treasonous plot). Presumably, if a President could pardon himself, he would do so before he was “incapacitated by his agency,” and avoid the “prosecution and punishment in the ordinary course of law” that Mr. Hamilton alluded to earlier in his essay. Mr. Hamilton never indicated such could occur.
In Federalist No. 74, Mr. Hamilton returned to the presidential pardon power, declaring:
“As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law,and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. [Emphasis Added]”
Addressing the issue whether the pardon power should only be vested in the Congress in cases of treason, Mr. Hamilton wrote:
“As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate [i.e., the President] ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. … [T]he secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. [Emphasis Added].”
The basis of Mr. Hamilton’s argument in favor of the President’s pardon power is that a single individual “of prudence and good sense” – as contrasted with a legislature, easily moved by the passions of the day — would be able to impartially determine whether a given individual deserved a pardon. (Mr. Hamilton’s position here was arguably colored by his obvious visceral belief that the President would always be of sterling character; he commented in Federalist No. 68, “It will not be too strong to say that there will be a constant probability of seeing the [presidency] filled by characters preeminent for ability and virtue.”) Even so, since no person can be expected to be prudent or sensible with regard to his/her own guilt and punishment, it is not a long conceptual step to infer that Mr. Hamilton never envisioned that a President could pardon him/herself. Although Mr. Hamilton specifically contemplated that a President could be involved in treasonous activity, he provided no mention that the treasonous President could pardon him/herself.
https://avalon.law.yale.edu/18th_century/fed69.asp
https://avalon.law.yale.edu/18th_century/fed74.asp
Finally, let’s go to the most compelling authority one can find this side of The Godfather:
“PARDON. An act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed [Citations omitted].
EXECUTIVE PARDON is an executive act of grace exempting an individual from punishment for a crime he has committed [Citations omitted]. [Emphasis Added]”
- Black’s Law Dictionary; Revised Fourth Edition
A pardon is an act of grace, which by its very nature must be bestowed by one with power on another deemed worthy of clemency. One cannot bestow an act of grace on oneself.
As Ms. Lawton noted long ago, no one can be a judge in his/her own case. Mr. Hamilton spared no effort to convince skeptical Americans that the President would not have the powers of a King. (What is more Sovereign-like than the power to forgive oneself of one’s own misdeeds?) Finally, no one can perform an act of grace for him/herself.
Are these arguments irrefutable? Of course not. Mr. Hamilton never specifically declared, “The President described in our contemplated Constitution can’t pardon himself.” Justice Scalia was also an adherent of textualism, which interprets the meaning of a legal document by its text, and there’s nothing in Article II, Section 2 that says a President can’t pardon him/herself. That said, it is hard not to anticipate that Justices Gorsuch, Kavanaugh, and Barrett, appointed by Mr. Trump, will look for a justification to enable them to assert their independence from the former president by joining Chief Justice Roberts and Justices Kagan, Sotomayor, and Jackson in rejecting such a broad claim of the presidential pardon power. As U.S. District Judge Tanya Chutkan, the judge now presiding over Mr. Trump’s Washington, D.C. insurrection trial, noted in In November 2021, when rejecting Mr. Trump’s motion to block a congressional committee’s access to his presidential records:
“Presidents are not kings.”
On a final, unfortunately more somber note: if Mr. Trump is elected in 2024, I’m wondering whether he might not be able to achieve a de facto Get Out of Jail Free Card regarding any federal convictions then lodged against him even if he can’t pardon himself. He will certainly appeal any conviction and sentence. Unless his appeal is heard and denied before he is inaugurated, query whether upon taking office he won’t instruct the Justice Department to enter pleadings conceding the merits of any appeal he has pending, perhaps thereby obtaining the reversal of his conviction or remand of his case to the trial court – where it would be suspended during the term of his presidency. Having even less criminal and appellate law background than I have constitutional law knowledge, I leave this concern to those who do possess such expertise to correct me if I’m missing the boat here. I sincerely hope that in this last respect, I am.
McCoy's Noise 