By David R. Dow
According to reporting from Michael S. Schmidt and Maggie Haberman at the New York Times, President Trump was already exploring the possibility of pardoning himself, even before a riotous mob incited by Trump’s tweets and baseless charges of a stolen election stormed and defiled the US Capitol on Wednesday, January 6, the day Congress was meeting to fulfill its duty under the Twelfth Amendment to count the states’ electoral votes for President and Vice-President. With reports circulating that the Justice Department is investigating Trump’s role in instigating Wednesday’s lawlessness, the question is no longer merely hypothetical. May Trump pardon himself?
The constitutional text is short. Article II section 2 provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Some aspects of the pardon power are clear. For example, it applies solely to “offenses against the United States”—that is, federal crimes—and does not permit the President to pardon people for violations of state or foreign law. In addition, if the House were to again impeach the President, despite the fact there is almost certainly not enough time for the Senate to convict (or acquit) him, Trump could not pardon himself with respect to that new article of impeachment.
Historically, there have been questions as to whether the pardon power extends to possible offenses that have not been adjudicated. When President Ford pardoned Richard Nixon, the proclamation extended to all offenses Nixon “committed or may have committed or taken part in.” Yet the Supreme Court held in Ex parte Garland that the President’s power does in fact extend to issuing pardons in cases where there has not yet been a conviction.
So, the fact that Trump has not yet been charged or convicted would not preclude a pardon. If, for example, Trump were to resign, Vice-President Pence would assume the Presidency and he could pardon Trump for any federal offenses Trump might have committed in connection with the storming of the Capitol. But what if Trump doesn’t resign?
Nobody can be certain of the answer to a constitutional question that has never before arisen, and never before has a President attempted to pardon himself. With that caveat, however, we can be almost certain Trump does not have the power to pardon himself, and any attempt to do so would be ineffective.
Here’s why: Chief Justice Marshall recognized in United States v. Wilson, the first Supreme Court cases addressing the President’s pardon power, that the framers modeled the power on that of the English monarch. Much more recently, in Herrera v. Collins, Chief Justice Rehnquist observed that the constitutional power to issue pardons was understood by the framers to be coterminous with the monarch’s power in England, dating back to the 700s, to “extend mercy” or “soften the rigour of the general law.”
Yet in the 1,500 years that the pardon power has existed in the common law legal system, including the 234 years it has existed in the United States, it has never been used by a king or queen or President to pardon him or herself. Quite the contrary, Charles I was convicted of treason and beheaded in 1649 following the first English civil war. Edward II was imprisoned after being forced from the throne and succeeded by his son, Edward III. In all of English legal history, there is not a single instance of a king pardoning himself or even attempting to do so.
From a constitutional perspective, therefore, the relevant question is whether, given English legal history, the framers would have intended for the pardon power to include the authority of the President to pardon himself—something that had never happened in the English legal system. The complete absence of any historical antecedent for that practice strongly suggests that the answer is no.
And there is more. In the Declaration of Independence, the colonists enumerated twenty-seven grievances against King George III. People remember the complaint about taxation without representation, but that was, in fact, the seventeenth grievance on the list. The first was that George did not follow the law—which of course impliedly assumed the King is required to do so. The eighth was that he obstructed justice; the twelfth was that he attempted to make the military power superior to that of the people. Most extraordinarily was the twenty-seventh, which charged the King with “excit[ing] domestic insurrections amongst us.” It is most implausible to imagine that the same men who wrote the Declaration of Independence would write a Constitution giving the President the authority to excuse himself for committing acts similar if not identical to those that inspired the colonists to declare independence.
If Trump does purport to pardon himself, no one can be certain of the effect that effort will have unless and until he is criminally prosecuted and convicted in federal court. But democracies do not survive by permitting people who attempt to undermine them to escape prosecution simply because the outcome of the prosecution may be in doubt and simply because they once held the office of the the Presidency.
About the Author
David R. Dow is the Cullen Professor at the University of Houston Law Center. He is the author of Executed on a Technicality: Lethal Injustice on America’s Death Row. He can be reached via email at DDow@central.uh.edu.