In the argument that has broken out over a president’s putative power to pardon himself, I’m going to come down on the opposite side from Andy McCarthy and Mike Paulsen, and on the same side as Laurence Tribe. Thank goodness, for my peace of mind, it’s also the same side Jonah Goldberg is on.
Mike says, in his NRO article today, that “The only limitation set forth in the Constitution is that the president cannot pardon an impeachment conviction.” This is a species of (technical legal vocabulary alert) boneheaded textualism. Most of the rest of Mike’s article makes perfect sense–that impeachment by Congress is the principal check on a corrupt president. But the Constitution, like all legal texts, must be read according to sensible interpretive principles. And one of the most venerable of such principles is the rule against reading any legal text as stating an absurdity–which does not mean “a crazy result I don’t like,” but a self-contradiction.
As Jonah points out, the framers were aware of the ancient norm that “no man is allowed to be a judge in his own cause.” (The line is from Madison’s Federalist No. 10, but the context is that in legislative chambers, such a phenomenon is an unavoidable reality, though we wouldn’t tolerate it in a courtroom.) A pardon is one of the checks and balances built into our constitutional order. Such checks are literally the participation by one branch in the business of another. Hence the presidential veto is actually a legislative power. Likewise the pardon is a president’s share of judicial power, for pardons are meaningful only in one place: a court of law.
Just as we would not recognize a self-acquittal by a judge presiding over his own criminal trial, we ought not–courts ought not–recognize a president’s self-pardon. Andy calls the pardon “a judicially unreviewable act of executive discretion.” Now this is actually a textually insupportable statement. Courts alone are the agents that finally effectuate every pardon, and a president’s self-pardon is eminently reviewable. I would go still further: a president’s grant of a pardon to others, in the course of committing impeachable and criminal offenses, need not be respected by the courts in every instance.
Consider this scenario. The president has been bribed to veto a piece of legislation. A special prosecutor is sniffing around the transaction. The president pardons the individual who bribed him, and for good measure pardons himself. The House of Representatives impeaches the president for bribery, and throws in a second and a third article of impeachment giving his corrupt uses of the pardon power (for himself and another) as additional grounds for his removal. The Senate votes by the requisite two-thirds margin on all three articles of impeachment to remove the president. Congress has thus, by the most solemn process, pronounced the pardon power to have been unconstitutionally used this time.
Only a corrupt or incompetent judiciary would regard either man–the president or the crook who bribed him–as beyond the reach of the criminal law regarding bribery. It would be, in the words of John Marshall in Marbury v. Madison, “an absurdity too gross to be insisted on.”
And if, as Mike Paulsen argues, the president’s power is “plenary” in the sense of uncontrollable, so too is the judiciary’s power to disregard an attempted but constitutionally absurd use of the pardon power. For as I said above, pardons are effectuated in just one place–courts of law–and who shall say nay to the judiciary’s simple refusal to honor a president’s self-pardon? No one, that’s who.