The Pardon Power, Silly

That Trump’s lawyers were tasked with answering the question of whether a president can pardon himself for crimes isn’t particularly surprising. When asked to consider strategies in the face of attack, like an investigation by Robert Mueller’s investigation in collusion between the campaign and Russia, good lawyers will consider all possibilities, including some way outside the box. Hey, you never know.

What’s surprising, and either a bad thing or good thing according to where you stand on the political spectrum, is that this was leaked. But out it came, and, in turn, out came the scholars to get their names in the paper. After all, the question was posed, can a president pardon himself, and this went deep into law nerd territory. Perfect for an academic to show her stuff.

At Vox, the question was posed to 15 “experts.” The word “experts” is put in quotes not because the academics to whom the question was posed do not possess the requisite expertise, but because calling them experts begs the question. This was evident in the responses.

Susan Low Bloch, law professor, Georgetown University

I believe the president can pardon anyone, including him or herself. But the pardon cannot stop an investigation and, in a well-functioning democracy, should provoke an impeachment. The Constitution specifically provides that the pardon power does not prevent — or undo — an impeachment. I’m not sure if these Republicans would impeach, but I think that is the only check on the president.

On the other hand:

Diane Marie Amann, law professor, University of Georgia

“I beg your pardon.” That standard phrasing exposes the oddity of the notion that a person may pardon himself. One simply does not say, “Pardon me,” while standing in front of a mirror. This also holds true in our government — in John Adams’s words, “a government of laws and not of men.”

To permit the elected leader of that government to absolve himself of wrongdoing — perhaps, for good measure, to do so on a weekly basis — would erode the bedrock of our Constitution.

That this otherwise ridiculous question arises at all may be a reflection of our interesting times, but one prawf turned to the language of the Constitution, that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” Article II, Section 2. The other devolved into empty rhetoric.

Larry Tribe, Harvard Law School prawf and big Louise Mensch fan, says it can’t possibly be lawful, but then, he fails to distinguish between pardon for an offense and impeachment. Impeachment is off the table because the Constitution expressly says so. The rest of Tribe’s argument has nothing to do with the question, which is worrisome for someone allowed to teach students.

But Noah Feldman, another Harvard Law professor, has jumped into the fray to enlighten the public on this question.

Here’s some unsolicited advice for President Donald Trump: Don’t listen to any lawyers who might tell you that you can pardon yourself, or even that it’s a close legal question. You can’t — and no court is going to rule otherwise.

There’s a decent historical argument about why, but it’s beside the point. The bottom line is that if the president could pardon himself, we would no longer have a republic — nor a government of laws rather than men. We would be a dictatorship, not a democracy.

Dictatorships are really scary, so that would be a terrible thing. But…why is that so?

You know that. Americans know it. The Supreme Court knows it. Now let’s move on.

That’s not actually a reason, Noah. But then, Noah isn’t writing for lawyers or judges. He’s writing for the public, for his tribe. Reasons are for lawyers. The tribe just wants outcomes.

The very idea of self-pardon is the kind of silly technicality that non-lawyers think lawyers engage in all the time. I’m not going to offer a full-throated defense of the legal profession, but we’re not really that dumb or bad — at least not usually.

So those 15 “experts” must be “that dumb,” because they thought about “the very idea of self-pardon”? Noah’s rather dismissive of his academic colleagues. He then goes into some ancient history, ultimately noting that he’s wasting his, and our, time by stating:

But frankly, the history isn’t the point. The basic problem with self-pardon is that it would make a mockery of the very idea that the U.S. operates under the rule of law. A president who could self-pardon could violate literally any federal law with impunity, knowing that the only risk was removal from office by impeachment.

Yes. So?

We have a name for an elected leader who is outside the law: dictator. And dictatorship is fundamentally inconsistent with the republic established by the Constitution.

Some might see that as a bit circular, a little facile, since the Constitution provides the constraints of the republic, and it either allows, or doesn’t allow, the president to pardon himself. And should the president turn into a dictator, then neither law nor Constitution is likely to hold the solution to the problem.

Of course, it’s true that no court has ever held that the president can’t pardon himself — because no president has so outrageously tried to flout our basic constitutional principles.

We can thank God for that. But more immediately, we can thank a constitutional structure that is designed to limit the institutional power of any single branch of government.

God? Well, that’s a bit establishment-y, but by what means does this man-made structure address this silly question?

And that’s why I can predict with complete confidence that no court would uphold a presidential self-pardon. To do so would be to render the courts essentially useless as checks on the executive, to say nothing of Congress, which passes the laws in the first place.

A pardon is an act of executive mercy, not judicial determination. There is no requirement that a pardon be given only to the worthy, the deserving. The president can pardon anyone he chooses, and that’s that. He doesn’t need judicial approval. He doesn’t need congressional approval. He doesn’t need popular approval. He suffers the political consequences of his act, and that is always a check on presidential power.

The constitutional structure has placed an unreviewable power in the hands of the President. The Constitution provides for a limit on the president by impeachment, not prosecution. Essentially, the president may well have impunity to violate federal law, no matter how much Noah ridicules the notion.

In the unlikely event that Trump was to pardon himself, it wouldn’t prevent Mueller from investigating. It wouldn’t have any impact on impeachment. At most, it would be eliminate the possibility of his being prosecuted for any alleged crimes and, should he be convicted, being sentenced.

Yet, Noah Feldman, a Harvard Law prof, has predicted with “complete confidence” that no court would uphold a self-pardon. He’s likely right, as no court would have jurisdiction over a suit so frivolous, so it would never reach a decision. What is the non-lawyer public to make of the law when this is what they’re told by a scholar whose credentials suggest he shouldn’t be the silly one?

12 thoughts on “The Pardon Power, Silly

    1. SHG Post author

      Who knows what’s real anymore. It would be nice if Walter Cronkite would let us know what was factual and what was hysterical, but we don’t. And does it matter in the scheme of public discourse and perception?

  1. Ray Lee

    What a sublime segue! From articulating an issue (has the academy lost its way by putting all its efforts into indoctrinating on dogma at the expense of critical thinking and endeavoring to develop higher order cognitive skills) to demonstrating the issue (academics who, without reference to the specific source of the pardon power, provide the conclusion they advocate while completely ignoring a logical path from the source of power to the exercise of that power vel non).

  2. Roger

    “He’s likely right, as no court would have jurisdiction over a suit so frivolous, so it would never reach a decision.”

    Mueller gets a grand jury to indict Trump. Trump pardons himself. Mueller attempts to proceed, arguing that the pardon is invalid. No court has jurisdiction to decide? Maybe the court ultimately decides that this is a political question that’s not justiciable, but that’s hardly a foregone conclusion. Assuming the existence of facts otherwise justifying an indictment it’s hard to see what would make this suit frivolous.

      1. Roger

        That assumes that (1) a sitting president can’t be indicted, though, as I’m sure you know past independent counsel have concluded otherwise and (2) the indictment occurs while the president is in office. Regardless of (1), if, hypothetically, there was evidence the president committed a federal crime before being elected and was indicted after leaving office you get past step one pretty easily.

        1. SHG Post author

          Ken Starr wrote a secret memo that he could indict Bill Clinton (try using the singular, since the plural would be false). That’s not the law. Your second hypo is more interesting. Collusion before office, pardon in office, indictment after office. Maybe.

      2. John Barleycorn

        I wouldn’t get too worried about it until he figures out he can whack three or four supremes, a hundred or so congressional critters, and an assorted cabinet member or two.

        What could possible go wrong if he times the next market bubble just right, doesn’t fuck with K- Street, and only holds the law school deans under house arrest while selectively picking off the tenured terrorists who don’t fall in line.

        Hell, throw in every federal employee and their spouses who are vested and he could probably give himself the Medal of Honor or would he have to go with the Presidential Medal of Freedom?
        I am not sure what the established law that might be?

  3. wilbur

    If my memory is correct, this issue arose during Watergate, and I recall the general conclusion then was that a President could pardon himself (and pay the massive political price). It was also widely assumed that when Ford assumed the Vice-Presidency, he did so with the sub rosa agreement to pardon Nixon if he ascended to the Presidency.

    Now if I could only remember where I left my keys …

    1. SHG Post author

      Isn’t it odd how we can remember things from decades ago but not what we ate for breakfast? Short term memory is the 12th thing to go.

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