So, Trump has declared that he has the power to pardon himself, and a lot of very serious people are scratching their heads and some are saying it’s an open question. In terms of statutory language and precedent, the question is maybe a blank slate where the normal tools of legal analysis don’t shed much light. The analysis I’ve seen, however, seems to look at the law as an abstraction with right and wrong answers hidden in the back closet somewhere. And that’s the wrong way to look at the law. As a younger lawyer, I had this vague notion that I could work cases like a geometry proof — if I cited cases with the correct language, then the court had no choice but to find in my favor, irrespective of the real world consequences and subjective concerns like the perception of fairness. But that’s not how it works.
The law has no independent existence. We have to give it power. In my role as an attorney for the Legislative Services Agency, I wrote statutory language on my computer. The words were conjured up in my head. But that didn’t mean I was personally creating law. The process of going through committee hearings, through one chamber, then the other and then past the governor, full of people who had been elected to the position — that’s the magic dust that turned the words I typed on my computer into law binding on the entire community. And, even then, the process wasn’t done — there is a huge apparatus of judges, law enforcement officials, and other bureaucrats who give life to the law. Ultimately, the law lacks meaning unless enough of us believe in its legitimacy.
Does a self-pardon have that sort of legitimacy? Can you point convincingly to the intent of the Founding Fathers to create an executive who could pardon himself for his own crimes? No. They were attempting to move away from monarchy, not toward it. Can you point to good policy reasons for giving a person the power to excuse himself from obeying the law? No.
Of course you’ll have partisans who will twist and turn and desperately contort their principles in an effort to make it o.k. But, any fair minded person is going to agree that, if the rule of law means anything, it means that a citizen will not sit in judgment of him or herself while everyone else is subject to the force of external legal processes. Of course, the law could obviously be circumvented by an amoral executive, a feckless Congress, and a complicit judiciary. The primary remedy for that is at the ballot box.
James H Hulbert says
Sheila Kennedy says
Isn’t it the essential premise of the rule of law that no one is above the law–that the rules must apply to everyone? Allowing an office-holder to pardon himself would effectively nullify that premise–as well as violating John Locke’s observation that in a just system “no man should be the judge of his own case.”
I think what you describe is what most of us would call, “Justice.” I think people miss the idea that law is not like football where convoluted and I just outcomes are baked in because the text says so. While that does happen in our legal system, we have generally empowered the judicial system to, above all else, be just in their decisions. I think the system would evaluate this hypothetical similarly.
Also worth noting that in all likelihood, monarchical behavior would be first on the founding fathers’ list of high crimes and misdemeanors. What would be more monarchical than a self pardon?
Paul K Ogden says
I just wrote a piece on my blog Ogden on Politics discussing the history behind the pardon. There were very, very few federal crimes back then. Crime was almost entirely a purview of the states. What has worked to greatly expand the pardon power is explosion in the number of federal criminal statutes. I think subjecting the pardon to Senate approval would be a worthwhile and much needed constitutional amendment.
Rick Westerman says
“…The primary remedy for that is at the ballot box.”
If only the ballot box was fair; i.e., not gerrymandered.
Please pardon my limited understanding, but I thought the prospect of Trump having committed an unlawful offense could be construed by a sane House of Representatives as probable cause for impeachment, which, If the Senate agreed, would strip Trump (or any other president) of the power to pardon. I can imagine Trump trying to pardon himself of a possible future conviction, but by then, hopefully, sufficient, raucous, national laughter would finally deflate even his ego, and expedite his exit.