Vail Law column: Does the law allow the president to pardon himself?
August 8, 2017
Editor's note: This is the final part of a two-part series on the president and pardon.
In the first part of this column, I posed the question (admittedly, not an original one in light of the recent churn of controversies swirling from the White House) of whether or not the president could pardon himself.
We engaged in a bit of linguistic and logical gymnastics to try to answer the question from a common-sense perspective and peeked behind the velvet curtain of the Constitution to see where the Great and Powerful Oz of the presidential pardon power lies. We found that, like the sorcerer in the movie, the constitutional wizard was a withered little thing, consisting of a mere score or so of key words with enough frayed edges to fail to lend a sharp and definitive image.
"The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." Oh, to wish for a stubby little appendage that might have said, "But, hey, he (or one day she) cannot pardon himself!" Alas, however much as one might wish, that ain't the case. In much the way the rest of the Constitution is constructed, the framing is complete, but the electrical, plumbing, drywall and finishes were left for future generations.
“The rule of law is supreme in these United States. Ours is a nation of laws, not men. And the president is not above the law. Can the president pardon himself? Ah … no.”
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We found that, in the main, history has been unhelpful for the simple reason — President Nixon's deluded nightmares notwithstanding — none of this president's 44 predecessors has ever tried to wield the presidential power on himself.
I am reminded of an old adage; "A doctor who has himself for a patient has a fool for a doctor." But let's move on.
An 'act of grace'?
If not exactly precedent that squares on all fours, then what we do have is historical debate. As I shared in the first part, the Founding Fathers kicked this particular can around at the Constitutional Convention and none other than Alexander Hamilton argued for the presidential power in The Federalist No. 74 on the grounds of its "humanity." Nowhere, though, did Hamilton put to ink his thoughts as to whether a president could exercise the power to serve himself a generous prime cut of humanity. What's more, the matter has come up in one guise or another in a smattering of court decisions and several luminaries of the United States Supreme Court have weighed in, opining, in the words of the great Chief Justice John Marshall, that the presidential power to pardon is "an act of grace."
But, it seems, we live is less graceful times.
Pith within the question
So where that leaves us in these turbulent waters is in uncharted territory. Yes, the Founding Fathers endorsed that the power of the president to pardon should be adopted in the new American Charter. Yes, the Constitution does provide for the president to bestow pardons in the proper case. Yes, the Supreme Court has upheld that the power is inviolate and have cogitated in their writings why the power should exist. But what no one yet has done is offer that the power is absolute. And that, in this modern quasi-Caesarian psychodrama, is the pith within the question.
Let's dig in a little deeper before we come to our conclusion.
In addition to their place in the pantheon of bestowing grace, pardons have also been used for more political purposes, for ensuring domestic tranquility, and to bring peace after internal conflicts. As Alexander Hamilton argued in The Federalist No. 74, "In seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall."
Forgive your enemies (and, just maybe, keep them near).
Pardon as peace-making
Presidents have used the pardon power to overcome or mitigate the effects of major upwellings and unrest. President Washington granted an amnesty to those who participated in the Whiskey Rebellion; Presidents Lincoln and Andrew Johnson issued amnesties to those involved with the Confederates during the Civil War; Presidents Gerald R. Ford and Jimmy Carter granted amnesties to Vietnam-era draft evaders.
Each of these, you'll note, was in the form of offering an olive branch and making peace rather than in the guise of feathering one's own nest.
While the scope of the pardon power remains broad, it is not plenary.
While Supreme Court Justice Stephen Field, one of our most obstreperous justices, wrote in Ex parte Garland (1867), "If granted before conviction, (the presidential pardon power) prevents any of the penalties and disabilities consequent upon conviction from attaching (thereto); if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity … A pardon reaches both the punishment prescribed for the offence and the guilt of the offender … so that in the eye of the law the offender is as innocent as if he had never committed the offence."
You will note, however, that even this combative jurist was silent on the president's power to turn a pardon on himself.
In United States v. Klein (1871), it was held that Congress cannot limit the president's grant of an amnesty or pardon. Though pardons have been litigated, the Court has consistently refused to limit the president's discretion. Chief Justice Warren E. Burger, however, in Schick v. Reed (1974), seemed to limit the Court's restraint to pardons under "conditions which do not in themselves offend the Constitution." This, then, is the nut of the current controversy.
The possibility of a president pardoning himself for a crime is not precluded by the explicit language of the Constitution, and, as alluded to above, during the summer of 1974, some of President Nixon's lawyers argued that it was constitutionally permissible. But a broader reading of the Constitution and the general principles and traditions of American law lead to the inexorable conclusion that a self-pardon is constitutionally impermissible. The president pardoning himself would violate the over-arching principle that a man may not judge himself. Would anybody argue that a judge should try himself were he accused of some wrongdoing?
The rule of law is supreme in these United States. Ours is a nation of laws, not men. And the president is not above the law.
Can the president pardon himself? Ah … no.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices of counsel in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at Robbins@SLBLaw.com.