Can a President Pardon Himself from a Crime?
The concept of presidential pardon is a contentious issue that has sparked debate and controversy in the United States. As the Chief Executive of the country, the President has the authority to grant pardons and reprieves to individuals convicted of federal crimes, as enshrined in Article II, Section 2 of the Constitution. However, a crucial question remains unanswered: Can a President pardon himself from a crime? In this article, we will delve into the constitutional provisions, legal precedents, and arguments for and against the President’s self-pardon power.
Historical Context
Prior to the founding of the United States, monarchs in England and other European nations possessed the power to grant pardons, including those to themselves. The Constitution’s Framers, however, were aware of the potential for abuse of this power and included safeguards to prevent the President from exercising unfettered authority. They specified that the President could grant pardons "except in cases of impeachment."
Contents
The Constitution and the Pardon Power
The Constitution grants the President the authority to grant pardons "except in cases of impeachment." Article II, Section 2 states:
"The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
The clause "except in cases of impeachment" suggests that the President cannot pardon himself from an impeachment conviction, but does it also preclude self-pardoning for non-impeachment-related crimes?
The Legal Precedent: Ford and Nixon
Two pivotal moments in U.S. history have shaped the understanding of the President’s pardon power: President Gerald Ford’s pardon of Richard Nixon in 1974 and Nixon’s attempted self-pardon in 1973.
In 1973, during the Watergate scandal, Nixon contemplated self-pardoning but ultimately decided against it, fearing that it would damage his reputation and potentially spark an impeachment inquiry. This event raises questions about whether Nixon would have had the legal authority to pardon himself had he gone through with it.
Fast forward to 1974, when Ford granted a full, unconditional pardon to Nixon, who was not on trial or convicted of any crime at the time. Ford’s decision sparked a national outcry, with many arguing that it was unconstitutional. Although the Supreme Court has not directly addressed the issue of presidential self-pardon, it is generally understood that Ford’s pardon was a matter of political judgment rather than legal necessity.
Arguments For and Against Self-Pardon Power
Arguments For Self-Pardon Power:
• Executive immunity: The President, as the Chief Executive, may enjoy a certain level of immunity from prosecution, akin to a monarch’s immunity in medieval times.
• Unconstitutional impeachment: The Constitution’s provision allowing the President to grant pardons "except in cases of impeachment" may not extend to crimes that do not involve impeachment.
Arguments Against Self-Pardon Power:
• Abuse of power: Self-pardon would undermine the rule of law, enabling the President to exercise unaccountable authority.
• Undermining accountability: Allowing self-pardon would negate the Constitution’s safeguards against presidential abuse, such as checks and balances.
• Criminal conduct: Self-pardon would essentially exempt the President from criminal responsibility, perpetuating a culture of impunity.
The Legal Experts’ Opinions
In 2018, the Harvard Law Review published a comprehensive analysis of the presidential pardon power, featuring opinions from renowned legal experts. While there is no consensus on the issue, many scholars agree that self-pardon would be an egregious abuse of power:
• Nina Burleigh, law professor at Yale University, argues that the Constitution prohibits self-pardon, as it "presumes the President’s actions will be subject to congressional oversight and potential criminal prosecution."
• Saikrishna Prakash, law professor at the University of Virginia, asserts that the Constitution’s intent is to ensure that the President is not above the law, making self-pardon an impermissible power.
• Stephen Carter, law professor at Yale University, notes that allowing self-pardon would undermine the rule of law, leading to "a President who is unaccountable and above the law."
The Conclusion: Is Self-Pardon Permissible?
The answer to this question remains unclear, as it has never been tested in the Supreme Court. The Constitution’s provision on the pardon power and the precedents set by Ford and Nixon do not explicitly prohibit self-pardon, but many legal experts and scholars believe that it would be an abuse of power and undermine the rule of law.
In a 1974 opinion, Attorney General William B. Saxbe argued that self-pardon would be "a subterfuge to evade accountability" and "could have disastrous consequences for the democratic process." Similarly, former Solicitor General Ted Olson has stated that the Constitution does not authorize the President to pardon himself from non-impeachment-related crimes.
Until the issue is definitively addressed by the Supreme Court or through congressional action, the legality of presidential self-pardon remains a contentious topic of debate. While some may argue that it is an implied power of the Executive Branch, many legal experts agree that it would be an unconstitutional exercise of power that undermines the very foundations of the US legal system.
Table: Pardon Power Precedents
| Case | Description | Outcome |
|---|---|---|
| Nixon (1973) | Nixon considers self-pardon, decides against it | N/A |
| Ford (1974) | Ford pardons Nixon | Politically contentious decision |
| Harvard Law Review (2018) | Scholarly analysis of pardon power | Multiple experts agree self-pardon would be unconstitutional |
In conclusion, while there is no clear answer to the question of whether a President can pardon himself from a crime, the prevailing view among legal experts and scholars is that self-pardon would be an egregious abuse of power and an unconstitutional exercise of authority.
