Pardon Me
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. – Constitutional Oath for the President
There are few powers as unlimited in the US Constitution as the Presidential power to pardon. In the complex system of checks and balances established by the Constitutional Convention where each branch has an alternate authority over the other; there is no check against the power of pardon.
John Marshall, who as Chief Justice of the Supreme Court established the power of the judiciary in the United States, defined the pardon power in 1833:
A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate…. – John Marshall – US v Wilson
The Constitutional Convention recognized that no matter how structured and balanced the government was, there might be times when the “grace” of a pardon was necessary. George Washington exercised this power during his Presidency, forgiving the participants in the Whiskey Rebellion. Most of the Confederate Civil War veterans were pardoned after the Civil War. Jimmy Carter pardoned many of those who dodged the draft during Vietnam. And, while many disagreed with President Gerald Ford, his pardon of disgraced President Richard Nixon brought to an end three years of national turmoil.
These pardons had a high purpose, to reunite the nation after some critical event. President Ford described it well; he was trying to end, “…our long national nightmare.”
A second use of the pardon power was to “right a wrong, ”the “private” act that John Marshall described. Some have been famous: Eugene Debs the Socialist Presidential candidate of the 1920’s, Patty Hearst the kidnaped heiress turned terrorist. Some have tried to rectify the wrongs of an earlier time: President Obama pardoned hundreds who were convicted of drug charges in the 1990’s and given lengthy sentences during the “war on drugs.” And some have been related to the President; President Clinton pardoned his brother Roger who had already completed a jail sentence for cocaine possession and trafficking. Roger was caught up in a sting that the President himself had authorized as Governor of Arkansas.
There is no check on the pardon power. If a President is willing to face impeachment and removal from office by the Congress, then he might be able exercise the pardon power in any way he chooses. At least, that’s the position the President Donald Trump has taken, as he claims to have the power to “pardon himself.”
However, there are two legal precepts that could alter Mr. Trump’s perception. The first is the legal precept that no one can judge their own case. A pardon requires someone who can give the pardon and someone to accept it; a President pardoning himself is in fact judge and jury. It is possible a court might be persuaded to void such a pardon.
The second is the legal concept of “corrupt purpose.” If the President uses the pardon power to prevent testimony against himself, or if a President uses it to avoid personal prosecution, these actions have a corrupt purpose. Federal jury instructions describe corrupt purpose as:
A person acts “corruptly” if he acts voluntarily and intentionally, with an improper motive of accomplishing either an unlawful result, or a lawful result by some unlawful method or means.
Avoiding or interfering with criminal prosecution is an unlawful result, so even the President’s lawful act of pardoning may be considered corrupt.
Would a court, and ultimately the Supreme Court, rule that a Presidential pardon “doesn’t count?” If the President were to pardon, say, Paul Manafort, it is unlikely that the Court would stop it. The President might be held accountable for a corrupt use of his power, either by impeachment and removal, or by criminal indictment after the term in office is complete, but the pardon itself would probably stand. However, if the President were to try to pardon himself, this would create a crisis not foreseen in the halls of Philadelphia in 1787.
There certainly would be one price that any President that pardoned himself would face: sure impeachment and removal by the Congress. President Trump should realize this from the response the Republicans in the House and Senate gave. Senator Chuck Grassley (R-Iowa) maybe put it best: “If I were President of the United States, and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer.”
