I am not a lawyer. Nor do I play one on TV. But I follow Harvard Law professor Laurence Tribe on Twitter and I have read the papers he cited that challenge the assertion that a president can pardon himself. After reading those papers I am convinced that any pardon Donald Trump grants to himself will also fail. I further contend--and this will be controversial--that any pardon he grants to anyone who has helped him become President through an illegal conspiracy will fail. Obvious suspects who MAY have helped Donald Trump become President through illegal means include Michael Flynn, Jared Kushner, Paul Manafort, Donald Trump Jr., and Roger Stone. Others may be involved as well. I will argue that none of them will be safe from prosecution should evidence arise that they have either helped Trump gain power through an illegal conspiracy or maintain power through an illegal cover up and obstruction of justice. Allowing them to weasel out of prosecution should evidence of crimes emerge would pose a grave potential danger to the Constitution and to the Republic.
The uncontroversial part of my claim--that the President can not pardon himself--isn't as uncontroversial as you might think. You may think it is obvious that a President can not pardon himself. Allowing a President to pardon himself would put the President above the law, and NO ONE is above the law. But it is not so simple. The Constitution grants the President very broad powers of pardon and it does not explicitly state that he can not pardon himself.
Article II Section 2 Paragraph 1 of the Constitution states, "the President. . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
Thus the Constitution only explicitly states the following limits on the President's ability to pardon.
- He can not use his pardon power to prevent an impeachment.
- His pardon power is limited to "Offences against the United States". In other words, the President can not prevent prosecutions under state law, nor can he pardon anyone from civil lawsuits.
Other than that, the President is free to use the pardon in any way he sees fit--that is assuming you rely only on the text of that part of the Constitution that grants the President the power to pardon. I will argue that this is not the right way to interpret the Constitution. Actually, this isn't my argument. I will borrow very heavily a paper by Michigan State University College of Law Professor, Brian C. Kalt entitled, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons. Kalt argues:
- "To properly understand constitutional provisions, it is almost always essential to read the clause in question against the background of the rest of the Constitution. . . . it is essential to examine the entire constitutional framework rather than just one clause in isolation."
- "The leading and most recent Supreme Court case on the bounds of the pardon power is Schick v. Reed, which held that . . . 'the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution'"
- "The law, then, is that the pardon power is intended to serve the 'public welfare,' not the corrupt whim of a self-serving executive."
I have included excerpts of the most relevant parts of Kalt's article at the end of this essay.
Kalt makes a strong case that even though the Constitution does not explicitly forbid a President from pardoning himself, Presidential self-pardons are implicitly forbidden because they offend the Constitution as a whole and undermine the legal foundation of our government. I maintain that the same reasoning can be used to show that a Presidential pardon can not be used to protect those who conspire to help the President obtain or maintain power illegally.
Let us suppose for argument's sake that Donald Trump and one or more of his campaign team members conspired with the Russians to help him win the Presidency. In other words, they conspired to help put Trump in a position where he would gain the power to pardon his co-conspirators. If they helped Trump become president through an illegal conspiracy then Trump's entire presidency--including his power to pardon--is illegitimate. This would be the only crime which, if pulled off successfully, would give one of the criminals the power to ensure that none of his co-conspirators would have to go to jail, even if they were caught. Taken to the extreme, it would literally let the co-conspirators get away with murder. If we say that the Presidential power to pardon others is unlimited (with the two exceptions noted above), then a co-conspirator could assassinate or hire someone to assassinate the opposing presidential candidate the day before the election and suffer no meaningful consequences.
But wait a minute! If they tried to assassinate the opposition wouldn't they risk getting shot? And couldn't they be thrown in jail for violating state law? And can't the relatives of the opposing candidate sue the hell out them?
The answer to the first question is yes--they do risk getting shot by Secret Service, unless they hire someone else to do the dirty work. Or unless they come up with an assassination plan that mitigates that risk (like bribing a mechanic to sabotage the candidate's plane). The risk of assassination is low, but assassination of presidents have happened in the past without the assassin having the incentive of gaining a position of power. Who is to say whether assassination attempts will become more common if the assassin has a chance to gain power without the risk of criminal liability if his plan succeeds?
But what about criminal liability under statutory law? This may prove a deterrent provided the assassination is done in one of the states. But what if it is done in Washington DC? Or overseas? So much for statutory law being a punishment for murder.
Well, at least the conspirators would risk losing everything they've got in a civil lawsuit--that is unless they have millions of dollars in money parked in secret overseas bank accounts. In that case a multi-billionaire presidential aspirant could promise to pardon his cronies and pay them from his overseas account. If the assassination was backed by a foreign country, say Russia for example, they could look forward to living in a luxurious dacha if their crime is eventually exposed.
Of course there are pitfalls in this example. The assassination attempt might go wrong and the shooter could miss his target. Or the police could capture the assassin immediately. Or the police could catch the hired gun between election day and inauguration day and trace the crime back to the conspirators before President-elect takes power. There are risks involved, but they might not be enough to prevent a high-stakes gambling multi-billionaire and his gang with a lust for power from taking them. Certainly the risk is lower than it would be if the conspirators didn't have a get-out-of-jail-free card awaiting them on January 20.
There are two points to remember when considering this example.
- It is an extreme example used to illustrate the greatest potential danger that could arise if the President could pardon those who helped bring him to power illegally. Other illegal schemes such as hacking voting machines or hacking an opponent's email would be less risky.
- The risk is greatly reduced if this scheme is executed to help the President win re-election instead of being executed to help him win election for the first time. If the assassination occurs after the President is already in office then there is no risk that the plot will be discovered before the President gains power to pardon the assassin.
The murder of a Presidential opponent isn't the only worst-case scenario imaginable. A truly evil President could order Senators and Representatives who opposed his key legislation assassinated. Or he could order Supreme Court Justices assassinated so that he could stuff the Court with Justices to his liking. I can not imagine anyone in the military following such an order, even though the President is Commander-in-Chief. But surely a multi-billionaire President Caligula could find assassins-for-hire at the right price if they were also promised a Presidential pardon.
Schick v. Reed held that "the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution". Brian Kalt argued that allowing the President to pardon himself would offend the Constitution by putting himself above the law. This principle should be extended to those who criminally conspire with the Presidential Candidate or the President to help him gain or maintain the Presidency and thus help him wrongfully acquire or maintain the power to pardon.
But what if the Presidential Candidate's role or the President's role in a conspiracy to help him gain or maintain power is ambiguous? Suppose he said to his associates, "Will no one rid me of my meddlesome opponent" and did nothing more. Suppose he did not promise his associates that he would grant them a pardon if they embarked on an illegal conspiracy to help him win an election? If his associates interpreted his statement as a desire to see his opponent thwarted at all cost and illegally sabotaged his opponent from winning, should the President still have the power to pardon them? Actually, why should answering this question be contingent on the candidate having even an ambiguous role in a conspiracy? And why is it even contingent upon there being a conspiracy? Suppose one person, unaffiliated with the candidate criminally sabotages the candidate's opponent's campaign? It is not hard to imagine a scenario where this could happen. For example, one candidate could promise to build a major oil pipeline that would be worth millions of dollars to the CEO of an energy company while his opponent promises to block the pipeline. Should the President be able to pardon the CEO out of gratitude for the CEO's unsolicited actions that help him gain power if the CEO criminally sabotages his opponent?
I would say "no". Even the hope of obtaining a gratitude pardon could embolden a potentially criminal actor to sabotage an election. Thus, the rule should be that the President should not be able to pardon anyone who criminally helps him obtain or maintain his power. Any other rule would offend the Constitution.
Note that this rule applies only to criminal actions that contribute to or potentially contribute to the candidate's ability to obtain or maintain power. Suppose, in our example, the criminal oil CEO murdered the candidate's opponent AND committed another crime totally unrelated to the Presidential campaign (say massive tax fraud or murder of his spouse's lover.) The President could pardon the criminal for the unrelated crime but he could not pardon him for the crime that helped him gain power. Pardoning the former crime, though shocking, does not pose a danger to our government and thus does not offend the Constitution. Pardoning the latter does.
These are the most important excerpts from Pardon Me?: The Constitutional Case Against Presidential Self-Pardons by Brian C. Kalt, a law professor at Michigan State University College of Law (Yale Law Journal, Vol. 106, No. 3, 1996-1997) Each excerpt will be followed by the page number(s) from which it was lifted.
To properly understand constitutional provisions, it is almost always essential to read the clause in question against the background of the rest of the Constitution. (p.790)
. . . the structure, themes, and principles of the Constitution must be examined to provide a complete reading of the pardon power. (p.793)
it is essential to examine the entire constitutional framework rather than just one clause in isolation. As the Court held in Schick v. Reed,"5 the limits of the pardon power "must be found in the Constitution itself," not, notably, in the clause itself .1 This hints at a helpful method of constitutional interpretation-structuralism-which uses the overall structure of constitutional government as evidence for understanding individual parts of its design.
Looking at structure also fills in some of the inferential gaps left by the Framers' silence. While it is easy to lose sight of intent when parsing a single clause in a vacuum, it is harder to do so when reading the Constitution as a whole. This Section will argue that self-pardons are at odds with the structure of American constitutional government-in particular, with the structural imperative against self-dealing and with the limits of Article II-and are thus invalid. (p.793)
The leading and most recent Supreme Court case on the bounds of the pardon power is Schick v. Reed, which held that . . .
the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution
Schick used the structural, holistic argument that even an apparently unrestricted power cannot be read as doing violence to the rest of the Constitution.
This leaves, of course, the question of which variations on the pardon power would "offend the Constitution" within the meaning of Schick. To answer this question, it is necessary to examine some key cases in the development of pardon power jurisprudence. . . .
In Biddle v. Perovich [Oliver Wendell Holmes wrote]
We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served.
It is Biddle's language of structure and policy . . . that Schick reflected when it limited the pardon power to those acts that are compatible with the rest of the Constitution. The law, then, is that the pardon power is intended to serve the "public welfare," not the corrupt whim of a self-serving executive.
Update 12/3/18: Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw have produced a report published by Citizens For Responisibility and Ethics in Washington entitled "Why President Trump Can't Pardon His Way Out of the Special Counsel and Cohen Investigations." I'm no lawyer, but if you want to see what some real lawyers have to say about this then read their report.