Whether or not there are limits to a president's pardoning powers is a question that has been debated since the writing of the Constitution. And in more recent decades, the debate has centered around one specific question: Can presidents pardon themselves?
Are there limits to a President's pardon power?
Presidential pardons are laid out in Article II, Section 2 of the Constitution, which says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
That sentence alone cites the first two limitations to a president's pardon powers. "Offenses against the United States" is taken to mean that the president can only pardon federal crimes, not state crimes. Also, impeachment convictions are off-limits [PDF].
Meanwhile, in 1862, the Supreme Court declared that the president's pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." That means that being indicted and/or convicted of a crime isn't necessary to be pardoned—just that the crime itself must have already occurred [PDF].
A Constitutional History
According to a 1977 article in the William & Mary Law Review [PDF], going into the 1787 Constitutional Convention, there were no plans to include pardon power in the Constitution. It was politicians Charles Pinckney, John Rutledge, and Alexander Hamilton who fought for it.
It was during this same time that the question of whether there should be presidential pardon limits first arose. One person wanted to require the consent of the Senate as part of the pardoning process; he was voted down. Someone else wanted to add in “after conviction,” but was convinced that sometimes pardons before conviction might be desirable, so he withdrew his motion.
The biggest debate, however, was over the power to pardon treason.
In one pamphlet, George Mason—a politician and one of three U.S. Constitutional Convention delegates who refused to sign the Constitution because they considered it flawed—complained that “The President of the United States has the unrestrained power of granting pardon for treason, which may be sometimes exerted to screen from punishment those who he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”
Months later, when Virginia was considering ratifying the Constitution, George Mason was at it again, worrying that “The president ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself ... If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”
James Madison responded that there was a way to stop such abuses: impeachment. According to an account of the debate, Madison said that “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself: The House of Representatives can impeach him; They can remove him if found guilty; They can suspend him when suspected, and the power will devolve on the vice president. Should he be suspected also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.”
Ultimately, the Constitution—complete with broad pardoning powers—would become the law of the land.
What are the arguments against presidential self-pardoning?
In a 2019 paper, Dr. Michael J. Conklin of Angelo State University summarized the arguments on the pro- and anti- self-pardons debate. Arguments from the anti-self-pardon side include:
- The fact that a pardon is inherently bilateral, so a unilateral pardon makes no sense. In 2018, George W. Bush’s chief ethics lawyer Richard Painter told CNBC: “I do not know of an instance in human history in which a king has pardoned himself. The pope does confession to another priest. A pardon is, by its very nature, when one person pardons another.”
- That the Constitution is generally against self-dealing, and a self-pardon definitely fits that.
- That if presidents can pardon themselves, there is little recourse remaining. A popular president seeking re-election is unlikely to be the one using the self-pardoning power. It’s more likely to come from a president like Richard Nixon, who has few to no allies left, or a president at the end of their term. In the words of legal scholar Brian Kalt, “the only president who would pardon himself is one with nothing to lose; the political check is thus rendered irrelevant.” This is in contrast to Gerald Ford’s pardon of Nixon, which “was a considered policy judgment just like any other conventional pardon, and not a go-for-broke, corrupt self-pardon.” Unlike a Nixon self-pardon, Ford faced the people to pass judgment in the next election [PDF].
What are the arguments for presidential self-pardoning?
On the pro-self-pardoning side, Conklin lists the following arguments:
- The self-dealing issue doesn’t make sense, because a president can still pardon co-conspirators and prevent any investigation into presidential wrongdoing—which on the surface would seem as self-dealing as a self-pardon.
- Supreme Court cases tend to support presidential pardoning power. In Schick v. Reed, the court held “that the pardoning power is an enumerated power of the Constitution, and that its limitations, if any, must be found in the Constitution itself.” (Anti-self-pardoning advocates point out that the case also states that “the pardoning power was intended to include the power to commute sentences on conditions which do not, in themselves, offend the Constitution” [PDF]).
- It would mean the president could pardon every person in America—except one.
Both sides claim the point that the Constitution doesn’t say one way or the other. Kalt argues that this is because the Founders seemed to have never even considered that people might think a self-pardon was possible while others, like lawyer Robert Nida, argue that the restrictions noted in the Constitution are the only restrictions.
The closest the government has ever gotten to officially answering the question is in a 1974 memo from the Office of Legal Counsel, which said, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Still, not everyone agrees.
So can a president pardon himself or what?
So can a president pardon themselves? The answer is unclear. Because it has never been tried (yet), legal opinion is all over the place. Conklin’s explanation of the background was a prelude to the discussion of a survey he sent to 29 law schools asking faculty if they felt it was constitutional for a President to pardon themselves. The average response came out as "probably not." Though there is another possibility ...
In the same memorandum that said no one can be the judge in their own case, the Office of Legal Counsel suggested an alternative. The 25th Amendment allows the president to convey in writing an inability to perform the duties of the presidency, and those “powers and duties shall be discharged by the Vice President as Acting President.” Then, when the inability is lifted, the president returns to power.
This has happened a few times in U.S. history. In 2007, for instance, George W. Bush was undergoing a colonoscopy and so, for two hours, Dick Cheney was Acting President. But in those two hours, could Cheney have gone on a pardoning spree? The Department of Justice wrote, “If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter, the President could either resign or resume the duties of his office.”
No matter what, if a president tried any of this the legal challenges would be extreme—so the most accurate answer to the question of self-pardon is probably the one that came from Stanford University’s John Kaplan, who noted in 1974, "Anybody who tells you that he can think of what the answer is, just doesn’t know what he’s talking about."
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