1/20/01 1:20 p.m.
Why Ray Made the Deal
The self-pardon card.

By Nelson Lund, professor of law at George Mason University

ormer President Clinton’s deal with Independent Counsel Robert Ray is remarkably favorable to Mr. Clinton, especially when one considers the strong evidence of felonious conduct already on the public record. The deal entails sanctions that border on the trivial and no admission that Mr. Clinton was guilty of any crimes. And Mr. Clinton was even permitted to issue a self-serving statement suggesting that his false statements under oath had little significance.

Although it is impossible to know exactly why the prosecutor agreed to such lenient sanctions, one factor may have involved the high probability that Mr. Clinton would have pardoned himself before leaving office. Contrary to a considerable amount of commentary, President Clinton had every right to pardon himself. Moreover, he could have done so in secret, and he may for all we know have done just that, either before or after his deal with the prosecutor.

The Constitution gives the president “power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Neither Congress nor the courts may diminish this unqualified authority. Any limitations upon it must be found in the Constitution itself, and nothing in the Constitution bars a president from pardoning himself. Nor does the Constitution require that pardons be publicized or announced when they are granted.

Some have doubted the validity of self-pardons, arguing that the Constitution implicitly creates a rule against the president acting as “judge in his own case.” This is demonstrably false. The Constitution contains some provisions meant to prevent certain conflicts of interest. But it also contains provisions authorizing such conflicts. There is no general bar, explicit or implicit, to officials acting as judges in their own case.

Members of Congress routinely act as judges in their own case, subject to no other discipline than whatever their own colleagues or the voters may impose. Even more strikingly, imagine that Florida’s electoral votes had been challenged on legal grounds in Congress, and the Senate found itself evenly divided. Vice President Gore would have been entitled to cast the deciding vote, acting as judge in his own case.

Presidents, too, are often free to act as “judges in their own case.” A president is authorized to veto any bill that Congress passes, even if it directly affects his personal, political, or constitutional interests. Presidents have frequently vetoed bills because they would have diminished the president’s own power, and presidents are equally free to veto bills that might diminish their personal wealth. Even in the exercise of prosecutorial discretion, the nearest cousin to the pardon power, Presidents are authorized to act as judges in their own case. The Constitution allows a president to stop a prosecutor who is threatening to bring the president himself to justice, as Richard Nixon showed when he had Archibald Cox dismissed.

It has also been suggested that the Constitution implicitly denies presidents the power to pardon themselves because this power could facilitate the commission of serious crimes. That possibility was actually discussed at the constitutional convention. Remembering English history, Edmund Randolph and George Mason wanted to forbid pardons for treason, from fear that a president might instigate a plot, and conceal his own role by pardoning his co-conspirators. Nobody denied that this could happen, but the convention decided to accept the risk. Presidents can certainly use the pardon power for dangerous and self-serving purposes, whether or not they pardon themselves. Self-pardons are not unique in this respect, and there is no reason to suppose that the framers imagined that they were.

Because the legal arguments against the power of self-pardon are so weak, it is difficult to imagine what could have restrained Mr. Clinton from exercising that power, except honor. The independent counsel may therefore have calculated that a prosecution would almost certainly have proved futile.

Besides being futile, an effort to prosecute Mr. Clinton could have had a variety of adverse effects on the public. Those effects include the fact that a prosecution would almost certainly have brought any secret pardon to light. Although a president can secretly grant himself a pardon, he might lose the right to invoke it unless he disclosed it before he was actually put on trial.

One consequence of the deal just announced is that we will probably never know whether Mr. Clinton did pardon himself, or would have done so without the deal. That’s good. For all the weakness of the legal arguments against self-pardons, those arguments do appeal to a strong moral intuition. A self-pardon would be shameful, and we’ve already had to witness more than enough shaming of the presidency. If the lenient settlement with the independent counsel prevented us from having to face up to yet another dishonorable presidential action, we ought to be grateful.