Law & the Courts

The Corner

So, the President Really Is Above the Law?

Back in the Pleistocene Era, there was an effort to impeach and remove Bill Clinton. He was eventually impeached, but not removed. The young’ns can look up the details later.

One thing everyone said in those days was “The president is not above the law.” The president’s defenders said it too, but they’d modify it to something like: “The president is not above the law, but he shouldn’t be below the law either.” (This meant he deserved all the protections the law allowed or something.)

Well, it now seems that all of that is wrong.

Andy McCarthy argued the other day and Michael Stokes Paulson argues today that the president can pardon himself.

I’m not going to argue with them on the Founders’ intent because that’s not my main concern here — but I will say I’m not wholly convinced either. I should also note this post has nothing to do with Donald Trump.

Both legal experts note that the president cannot pardon state crimes. And Andy adds this crucial point:

It is obvious that the Framers understood they were permitting the president to pardon himself. The Pardon Clause says that while the president may pardon any federal offense, this does not extend to “Cases of Impeachment.” The Framers thus expressly considered a president’s potential use of the pardon power to benefit himself. The only limit they imposed on such self-dealing was to prevent the president from blocking his own impeachment, not his own prosecution. On this score, bear in mind that at the time of the Constitution’s adoption, there was no sprawling federal criminal justice system; it was expected that almost all crimes would be prosecuted at the state level [emphasis added].

This is a very important point. Today there are all sorts of crimes that fall outside of state law. The Constitution lists three federal crimes: piracy, counterfeiting, and treason. The Crimes Act of 1790 added 17 more. Now there are thousands. Some of these laws are absurd and some of these are necessary because of the absurd growth of the federal government.

So, a president could not in fact go out on Fifth Avenue and shoot people and then pardon himself because the president cannot pardon violations of state law. But according to what I’m reading he can pardon himself for murder if he only falls afoul of federal law. Now, I’m no lawyer (which is why I can see my reflection in mirrors), but I bet I could come up with a bunch of scenarios where an act of homicide violated federal law but not state law. The president shoots an illegal immigrant on a federal pier; the president garrotes the vice president while on the deck of an aircraft carrier in international waters, whatever. I’ll leave the hypotheticals to others.

Let’s just assume that the president commits a heinous federal crime — murder, high treason, wholesale mattress tag removal, whatever. Then let’s imagine he pardons himself for it. McCarthy and Paulson say the only remedy under the Constitution is impeachment and removal.

Well, that stinks.

If a normal American commits treason or murders someone, he can be put to death. If a president does the same thing he can lose his job? What the Hell kind of rule of law is that?

I have a very hard time believing that the same Founders who rejected the divine right of kings, primogeniture, titles of nobility, entail, and the like, believed that they were investing in the office of the president sovereign immunity for personal crimes. The pardon power, it seems to me, is a necessary tool. It is an act of forgiveness for others. Forgiveness of misdeeds is sometimes a painful necessity of politics and statecraft and sometimes it is an act of compassion and moral courage. In both cases it was wise to invest that power in the executive.

But for the life of me, I cannot see the wisdom of allowing a president to pardon him or herself for criminal acts not done in the national interest. If the president violates the law in the pursuit of the national interest (craft your own hypotheticals), he’ll probably be all right with the courts and the people. But if he commits a heinous crime for his own self-interest, what purpose is served?

Among the principles the Founders held most dear was the ancient British common law principle that no one should be a judge in his own case. As Madison puts it in Federalist No. 10:

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.

The pardon power is the power to judge the cases of others. It is not — or should not be — a loophole for the president to sneak back in the divine right of kings.

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