That doesn’t mean he should.
That doesn’t mean he should.
E ven though the election has ended, the controversies will not. With Michael Flynn now in the rear-view mirror, President Trump reportedly is considering issuing pardons to his children (Donald Jr., Eric, and Ivanka), his son-in-law Jared Kushner, and even Rudy Giuliani, though none have been charged with a crime. Giuliani has returned the gesture by noting that Trump technically could pardon himself too.
The potential political disaster has not stopped the White House from throwing the idea around. According to a report this week in the New York Times, “speculation about pardon activity at the White House is churning furiously.” Politico reports preemptive pardons for as many as 20 aides and associates are under consideration. Trump apparently fears that the Biden administration may prosecute him and his family. The president’s supporters have stoked this concern: “If Biden ever became president, I’d tell Trump pardon yourself and pardon your family,” Sean Hannity said on his eponymous Fox News show on Monday.
These pardons, even one for the president himself, would not violate the Constitution. But they would set a terrible political precedent that would long tarnish Trump’s legacy — especially if he wants to play kingmaker in the Republican Party or even run again in 2024.
Pardons had become an angle of attack on Trump from the early months of his term. In part, Trump prompted this criticism by not limiting pardons to deserving, but obscure, convicts, such as those who may have served unjust sentences or had contributed to the community in a remarkable fashion. He indeed drew bipartisan praise for pardons of sympathetic figures such as Alice Johnson. But Trump also gave reprieves to high-profile, controversial figures. In addition to granting clemency for Flynn, Trump issued to pardons to Lewis Libby, Roger Stone, and Sheriff Joe Arpaio, among others.
Critics claim that these cases reeked of partisan favoritism or that Trump was using the pardons to encourage figures caught up in the Mueller investigation not to cooperate. For example, Representative Jerry Nadler claimed that Trump wields the pardon power as “a favor to bestow on the well-connected when a celebrity friend . . . has lobbied on their behalf” or to “signal the promise of a pardon to those with potentially damaging information about him.”
A straightforward reading of the constitutional text makes clear that Trump could have pardoned anyone indicted in the Mueller investigation, including himself. Article II of the Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This text shows that the Framers made only three exceptions to the pardon power. First, the president can only issue pardons for federal crimes, not state crimes. Second, pardons do not reach civil actions under federal law. Third, the president cannot grant pardons for impeachment. The constitutional text contains no other limitations on the presidential pardon power, and the Supreme Court has never attempted to impose one.
Observers have described the breadth of the pardon power as plenary, unfettered, unqualified, and not subject to checks and balances from the other branches. Presidents have used it to pardon targets before prosecutors have charged them, while trials have been ongoing, or even long after conviction and sentencing. They have granted pardons to hundreds of thousands simultaneously, as with President Andrew Johnson’s 1868 grant of amnesty to members of the Confederacy, or President Jimmy Carter’s blanket pardon to all Vietnam War draft evaders. While no president has ever pardoned himself, Presidents Richard Nixon and George H.W. Bush considered the possibility. In light of the text of the pardon power and its breadth of use, the Constitution does not appear to prohibit presidents from pardoning their co-conspirators or even themselves.
Critics of this textual reading would suggest that a president can pardon anyone except himself. They could maintain that the “grant” of a pardon implies that the president issues the pardon to someone else; giving it to oneself is not a grant. They might also argue that a “pardon” itself is a legal instrument that can only be given to another, like a gift. These arguments, while weaker than the textual reading in favor of an untrammeled presidential power, demand that we turn to the original understanding for confirmation.
Historical evidence from the Framing cannot overcome the plain meaning of the constitutional text — if anything, it supports this textual reading. As with other elements of executive power, the American revolutionaries initially sought to restrict the pardon power. States restricted the authority once held by the royal governors by transferring the power to the legislature, restricting the crimes eligible for pardons, and by excluding impeachments. It should come as little surprise that the early drafts of the Constitution, the Virginia and New Jersey Plans, did not provide for pardons. But Alexander Hamilton, among others, led an effort to include a pardon power that mirrored the British practice, with its location in the executive, but with an exception for impeachments. Delegates rejected limits on the power, such as proposals requiring Senate consent or allowing pardons only for actual convictions.
An important exchange during the Philadelphia Convention previewed our arguments today. Edmund Randolph moved to amend the pardon clause to exclude treason as well as impeachment because the draft text involved “too great a trust.” Randolph worried that a president could use pardons to advance his own treasonous plots. “The President may himself be guilty,” Randolph worried. “The traitors may be his own instruments.” James Wilson of Pennsylvania rejected Randolph’s concern: “If the President be himself a party to the guilt he can be impeached and prosecuted.”
Rufus King of Massachusetts rejected a congressional role as “inconsistent with the Constitutional separation of the Executive and Legislative powers.” King argued that “a legislative body is utterly unfit for the purpose” because “they are governed too much by the passions of the moment.” Unusually, James Madison supported anti-executive sentiment and declared his preference for “an association of the Senate as a Council of advice, with the President.” Wilson and King, however, carried the day. The delegates rejected Randolph’s amendment. When the Convention had the chance to explicitly prevent presidential self-pardon (by excluding treason), it declined.
Records from the state ratification conventions — the only bodies with the legal authority to adopt the Constitution — confirm this reading of the Pardon Clause. Anti-Federalists who opposed the Constitution repeated Randolph’s attack. “The President of the United States has the unrestrained power of granting pardons for treason,” George Mason argued in his widely disseminated Objections to the Constitution, “which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” During the Virginia ratifying convention, Mason repeated his charge: “[T]he President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”
In Federalist No.74, Hamilton responded with two arguments. The Constitution creates a pardon power “out of humanity and good policy” to allow for “mitigation from the rigour of the law.” As a result, it should be “as little as possible fettered or embarrassed.” Recalling the original purposes of the pardon in British history, mercy has propelled most of the pardons issued by presidents in our history.
Hamilton’s second, broader defense of pardons bears directly on today’s Trump controversy. According to Federalist No. 74, Anti-Federalists proposed that in cases where the president himself is accused of treason, Congress should have the pardon power. Hamilton, however, defended the Constitution’s unlimited pardon power, even in cases where the president himself might be one of the conspirators. He explained that the pardon power must remain unfettered so it could help end public disorder or civil war. “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth,” he wrote. Only the president could act vigorously in times of crisis and use pardons to “restore the tranquility of the commonwealth.”
Federalists could have added treason as a third exception to the pardon clause, or required Senate consent to a pardon. Instead, they defended the sweeping scope of the power on the ground that the president might need to act quickly in times of rebellion and even civil war. Even though they had every incentive to do so, Federalists never claimed that a president could not pardon himself or any co-conspirators, even for treason. Instead, they answered that such a possibility was the price of the broader benefits of this unfettered power.
Federalist defenses of the pardon power built on the Constitution’s structure. The separation of powers concentrates the executive power in a single president to enable the federal government to act with decision, speed, and energy. The pardon power would bring benefits not just by moderating the harshness of the criminal law, but in advancing the nation’s security. Pardons did not just come about from executive grace; rather, they served the instrumental purpose of benefiting the public welfare. Hamilton’s wisdom undoubtedly served the nation well during the Civil War, when President Lincoln used not only the executive power to respond energetically to the existential threat of secession, but also the pardon power to begin the process of national healing. The benefits of such a power, Hamilton believed, outweighed the possibilities that a future president might use pardons to corruptly benefit himself.
It is this second use of the pardon power that is potentially most sweeping and controversial. An early example came with the 1794 Whiskey Rebellion, where none other than George Washington pardoned several leaders of the insurrection. At the end of the Civil War, Lincoln pardoned “all persons who have, directly or by implication, participated in the existing rebellion.” It is estimated that Lincoln and his successor, Andrew Johnson, ultimately pardoned 200,000 former members of the Confederacy.
Faced with this text and constitutional history, presidential critics appeal to ancient Anglo-American rules against conflicts of interest. “No man is allowed to be a judge in his own cause,” James Madison wrote in Federalist No. 10, “because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” During Watergate, the Justice Department issued a legal opinion that Nixon could not pardon himself “under the fundamental rule that no one may be a judge in his own case.”
Although this principle appears early in the common law and finds expression during the Framing, it does not appear in the constitutional text or structure. When the Constitution prohibits self-dealing, it does so clearly. A constitutional amendment prohibits Congress from raising its own pay in between elections, for instance.
Yet the Constitution does not weave an anti-self-judging principle throughout its structure. Attempts to read a principle against self-dealing into the pardon power, where none appears in the text, amount to the type of judicial activism that has undermined the legitimacy of the Supreme Court and does violence to democratic self-government. Textual silence here does not extend an invitation to import new limitations on the pardon power, but instead reflects the Federalists’ considered choice to leave the authority unfettered.
The broad scope of the pardon power allows a president, therefore, to constrain efforts by the bureaucracy, or Congress, to encourage subordinates to pursue an agenda at odds with his own. Suppose that a “deep state” had indeed cooked up a Trump-Russia collusion story, as some Republicans have argued. Suppose further that the bureaucracy advanced this narrative by abusing its powers under the Foreign Intelligence Surveillance Act to eavesdrop on Trump campaign officials and, ultimately, opened an investigation and prosecution of the Trump team. The pardon power would give Trump the ultimate control to end these probes.
As Hamilton and the Federalists foresaw, preserving the executive power to control law enforcement, to break up plots against the government, and to act swiftly and decisively outweighs concerns that presidents might benefit themselves. Even though Trump’s possible pardons surely would renew concerns of presidential self-dealing, it is not worth the permanent harm to the presidency to try to stop them either.
That is a weighty choice only Trump can make.