Pardon me? The constitutional case against presidential self-pardons.

• Author: Kalt, Brian C.

August 1, 1974. As Richard Nixon's presidency rapidly neared its end, his aides outlined his options. One possibility discussed was for Nixon to pardon himself and then resign. His lawyers prepared a short memorandum concluding that a self-pardon would be legal.(1) Nevertheless, Nixon decided against a self-pardon, resigned, and left his fate in the hands of President Gerald Ford.(2)

Christmas Eve 1992. President George Bush had lost his bid for reelection and would be in office for only one more month. Special Prosecutor Lawrence Walsh had persisted in his pursuit of Iran-Contra suspects. Bush decided to pardon several of them, leaving himself as the most prominent prosecutable figure.(3) Several commentators speculated that Bush might pardon himself for his role in the scandal, and many assumed that such an act would be valid.(4) One stated, "[F]or a president to pardon himself would, admittedly, be an act of unprecedented chutzpah, but the Constitution does not forbid it, containing nothing that circumscribes the power . . . ."(5) Others disagreed, including Walsh and his staff.(6) As one commentator wrote. "We have not recognized the power of a president . . . to pardon himself. On the contrary, one of the most fundamental principles of justice is that a person shall not sit in judgment of himself."(7) In the end, like Nixon, Bush did not pardon himself. His gamble paid off; he was not indicted.(8)

1. The Pardon Power

   The President's power to pardon is stated simply in the Constitution: The President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."(9) By limiting pardons to "Offences against the United States," the Constitution means to place private civil and state criminal cases beyond the President's reach.(10) By excepting "Cases of Impeachment," the Constitution stays the President's hand when Congress is doing the prosecuting instead of the executive branch. The President cannot stop the House from impeaching a federal official, nor can he undo the punishment the Senate doles out upon conviction.(11)

   Other than these limitations, the President's power seems plenary and quite flexible. Pardons can be granted at any time after a crime has been committed: before federal criminal charges are brought, after conviction and sentencing, or any time in between.(12) They can even be granted after the full sentence has been served, solely to restore the pardonee's civil rights.(13) The President can give amnesty to a vast group of federal offenders,(14) or he can pardon a single offender for a broad, unspecified range of crimes.(15) He can reimburse fines

   and forfeitures,(16) grant reprieves,(17) free prisoners, commute sentences, (18) or attach a range of creative conditions to any of these options.(19) The only restraints on the pardon power that have been formally recognized are those explicit in the text of the Pardon Clause. This Note contends, however, that a further limitation on the President's power, a preclusion of self-pardons, is implicit in the Constitution.

   The cases of Presidents Nixon and Bush, and most recently of President Bill Clinton,(20) have raised the specter of such self-pardons. Despite the potential political and historical magnitude of such an act, and despite the disagreement among those who have discussed its legality, the self-pardon has received little attention from scholars.(21)

   This Note is intended to remedy that neglect and make a constitutional argument against the validity of self-pardons. It does so by applying the most widely recognized methods of constitutional analysis: historical, textual, structural, and doctrinal (precedential).(22) While there is some overlap between these methods, each of the arguments is presented here as analytically distinct. This Note does not claim that any of these analytic modes alone provides a definitive answer to the question of self-pardons@ Considered together, however, they show that the argument for legality is grossly oversimplified, and that the evidence for the unconstitutionality of presidential self-pardons is substantially stronger.

   Part II makes the historical argument, examining original intent and the English history that informs it, and concludes that the Framers did not intend to allow self-pardons. Part III makes the textual and structural arguments, attacking the simple "plenary" reading and concluding that the best readings of the Constitution are structural ones that forbid Presidents from pardoning themselves. Part IV makes the doctrinal argument, supplementing the originalist and structural views by discussing the case law of pardons and the broader precedential principles of self-judging and the rule of law. Part V concludes that we should debate the unconstitutionality of self-pardons now, in the absence of a constitutional crisis, rather than wait for the problem to occur.

2. History and Intent

   This Part makes an originalist argument by examining the historical background of the English pardon power and the discussion of pardons at the Constitutional Convention. This evidence will suggest that, on balance, the Framers did not affirmatively intend self-pardons to be valid.

   1. The English Roots of the Pardon

      The American pardon power was inherited directly from its English royal counterpart.(23) To understand the meaning of American pardons at the time of the Founding it is thus important to explore the history of the pardon power in England. This history reveals three facts that are important for our purposes. First, the English pardon power was one of broad royal fiat, which fit uncomfortably with American notions of a limited executive.(24) Second, Parliament eventually restricted the King's pardon power in ways that are important to understand in answering the question of self-pardons. Third, and most directly, self-pardons were a nonissue in England, making it impossible to determine their validity in America solely by looking to English precedent.

      English monarchs had the power to pardon well before the Norman Invasion.(25) In the early centuries, pardons had little to do with mercy. Two popular rationales for extending royal clemency were raising money and

      raising armies. Early pardonees often gave either a cash payment or a promise to serve in the military.(26)

      Over the years, various Kings expanded and consolidated the power, ignoring a series of attempts by Parliament to limit it.(27) By the middle of the sixteenth century, the royal pardon power was absolute, giving the King the "authority to pardon or remit any treasons, murders, manslaughters or any kind of felonies ... or any outlawries for such offenses ... committed ... by or against any person or persons in any part of this Realm."(28) A royal pardon only applied, however, to offenses against the state, the remedies of private prosecution and personal reparations remained for wronged individuals."

      In England, there was no question about self-pardons or their legality because there could be no such thing as criminal executive action. "The law suppose[d] it impossible that the king himself [could] act unlawfully or improperly,";(30) there was nothing that the King could do that would require a pardon. Of course, Parliament could, and occasionally did, exercise an extralegal option - removing the King - in response to which a self-pardon would have been useless.(31)

      In the late seventeenth century, Parliament was finally able to limit the royal pardon power legally instead of extralegally. Its actions were in response to an episode involving the impeachment of the Earl of Danby.(32) The Earl, Thomas Osborne, was a Lord High Treasurer of England under King Charles II. In December of 1678, Parliament began impeachment proceedings against him for conspiring with France.(33) It was the King, however, who was making deals with the French; Danby was merely acting ministerially. Parliament realized this, but the King was "beyond reach" of legal remedies, impeaching the hapless Treasurer was the best that Parliament could do.(34) Unfortunately for Parliament, the King revealed in March 1679 that he had issued a pardon for Danby. If Charles had only been trying to protect Danby he could have pardoned the Earl in December, but the King was now acting to solve a different problem. An examination of Danby's actions would have revealed that Charles had been receiving bribes from France, a pardon would end the investigation and spare the King this embarrassment.(35)

      The King's action sparked a constitutional confrontation"(36) with Parliament, which had come to rely on the impeachment power to ensure proper governance. If the King could foil impeachments, Parliament would have no means of controlling his ministers.(37) A debate raged as to the legality of Charles's action.(38) Those who believed the Danby pardon to be invalid looked poised to win the argument, but the King defused the crisis by dismissing Parliament.(39) Charles won the battle but the monarchy lost the war: In the 1701 Act of Settlement, Parliament forbade pardons from being used to preempt impeachments.(40) The King could still pardon and reappoint his officials after they had been convicted by Parliament, but he could not subvert the impeachment process and thereby cover up his own misdeeds.(41) The King was still above the law, to be sure, but the newly restricted pardon power provided a little less insulation.

      The Framers thus inherited a model of the pardon power - broad royal flat - that would have to be adapted to fit the more circumscribed office of the presidency. The Danby episode vividly showed the danger of giving the executive an unrestricted power to pardon. As we will see, the appearance of the Danby scenario in the Convention debates casts light not only on the limits of the pardon power in general, but also on self-pardons in particular.(42)

   2. The Framers

      This Section argues that the Framers...