In the wake of accounts that independent counsel Robert Mueller has turned his investigation to the first family, President Trump tweeted last weekend that he has the “complete power to pardon.” His aides and lawyers suggested that the president might pardon not only his son Donald J. Trump Jr. and Jared Kushner, his son-in-law, but himself too.
Criticism rained down from legal scholars and commentators. Noted liberal Harvard law professor Laurence Tribe argued that “the Constitution embodies [a] broad precept against self-dealing.” Many critics rely on a brief, three-paragraph analysis by Richard Nixon’s Justice Department. On Aug. 5, 1974, it concluded the president could not pardon himself because of “the fundamental rule that no one may be a judge in his own case.”
The constitutional text and history shows that Trump has the Constitution, if not the politics, about right. Article II declares that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.” This text shows that the Framers knew how to make exceptions to the pardon power. They forbade a president from issuing pardons for impeachments, and they restricted them to federal crimes only. If the Framers had wanted to prevent presidents from pardoning themselves, they had only to add another exception.
Admittedly, a self-pardon would not advance the core purposes of the constitutional provision. As Alexander Hamilton explained in Federalist 74, the Constitution creates a pardon power “out of humanity and good policy” to allow for “mitigation from the rigour of the law.” Opponents of the Constitution responded, however, that the power ought not rest in the hands of the president for the very reasons raised today by Trump’s critics. They claimed that the legislature should hold the pardon power, because in cases of treason, “the connivance of the chief magistrate [i.e., the president] ought not to be entirely excluded.” In other words, the Anti-Federalists seemed to argue that the president should not have the pardon power because he might pardon himself and his coconspirators in a plot to commit treason.
Tellingly, Hamilton did not respond that the president could not pardon himself. He did not raise the claim that the Constitution silently adopted the rule that no one could be a judge in his own case. Instead, Hamilton argued that the benefit of vesting the power in the president alone outweighed the costs of possible abuse. Only a single man could act quickly in times of crisis to use pardons to break up a conspiracy. “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 tranquillity of the commonwealth,” wrote Hamilton.
Tribe and other critics retreat to the natural law principle that forbids a man from serving as a judge in his own case. We welcome their newfound eagerness to read the natural law into the Constitution, an idea over which they and a Democratic Senate attempted to roast Clarence Thomas during his confirmation hearings. In any event, the Constitution regularly grants a branch the power to judge itself. Congress decides its own salaries and whether to oust its own members. The judiciary decides the extent of its own jurisdiction and hears cases involving attempts to curb judicial power. And the Constitution grants the president various powers with which an incumbent may shield himself, including the veto and the pardon.
Of course, exercises of presidential power have consequences. By pardoning himself and his associates, Trump will all but ensure that the public regards them as guilty. His family may escape jail time, but Trump may well go down as one of the handful of notorious presidents in American history, on a par with Nixon or Andrew Johnson, whom the Reconstruction Congress impeached.
Nor would a pardon stop the investigations. While we will not see Jared Kushner in prison garb any time soon, both the executive and the legislature will continue to investigate the Russia hacking episode, any connections to the Trump campaign, and any financial improprieties of the president and his associates. Even if Trump pardoned himself, Mueller could surely continue his investigation into Russian interference with the 2016 elections and any obstruction of justice. A pardon would only redouble congressional and executive efforts to find the truth of the matter.
A self-pardon will also shift the balance of power to Congress, which could strangle the Trump presidency in its infancy. As the constitutional text makes clear, pardons cannot extend to cases of impeachment. Even if Trump pardons himself, the House can still impeach him and the Senate can still vote — with a two-thirds majority — to remove him from office. A pardon only prevents Trump’s prosecution after he leaves office.
In a moment of rare bipartisanship, legislators of both parties could agree that they will impeach and remove any president who pardons himself. As Hamilton explained again in The Federalist, “high crimes and misdemeanors” encompasses “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Members of Congress would be well within their rights to read “high crimes and misdemeanors” as including any president who pardoned himself.
The crucible for presidential self-pardons would come in the wake of a Trump ouster, by election or otherwise. If the next administration chose to ignore the self-pardon, it could prosecute Donald Trump, private citizen. At that point, Trump would produce the self-pardon and the courts would adjudicate this question of presidential self-help.
Trump clearly followed Nixon on the campaign trail by appealing to the silent majority to win the 2016 elections. But it is time for him to close the Nixon playbook. Unless he wants to meet the same fate as Nixon — impeachment or resignation — he should put aside talk of pardons and turn his attentions to the problems facing the nation.
John Yoo is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a former Bush Justice Department official. email@example.com
Saikrishna Prakash is the James Monroe distinguished professor of law and Miller Center senior fellow at the University of Virginia School of Law. firstname.lastname@example.org