THE LEGALITY OF PRESIDENTIAL SELF-PARDONS.

• Author: Larkin, Paul J.

1. THE CURIOUS CASE OF PRESIDENTIAL SELF-PARDONS

   November and December bring the onset of winter, the promise of Thanksgiving turkeys and hams, the anticipation of gifts at Christmas or Hanukkah, and the issuance of presidential pardons. (1) Every fourth year we also might see a transition in administrations, which can lead to dubious clemency grants. Presidents sometimes misuse their pardon power because they see it as a prerogative of their office--viz., an exclusive and unreviewable power--that they can exercise without relying on the bureaucracy for implementation. (2) Plus, outgoing Presidents, no longer accountable to the electorate and effectively immune from congressional oversight, are freed from any political restraint on their behavior. Some chief executives grant clemency to parties who would never have received it while the political guardrails channeling presidential conduct were still in effect. (3)

   When that occurs, such transparently opportunistic abuses of a prerogative--one intended to be used, not selfishly for the President's own personal advancement, but compassionately for others (4)--have justly drawn fire from critics across the political spectrum. (5) Mercy is an ancient and revered trait, (6) and executive clemency is the legal embodiment of mercy, (7) so abuse (8) of the clemency power not only tarnishes that practice but also violates an almost sacred trust. (9) Atop that, by abusing one of the few unreviewable powers of their office, Presidents poison the well for their successors, creating the impression that clemency is a reward for personal friends, political cronies, or the rich and shameless. (10)

   A particularly questionable action would be a President's decision to pardon him- or herself for any federal offenses committed while in office. Aside from being "an act of unprecedented chutzpah," (11) the practice is treacherous as a practical matter because it implies that the President might have committed a crime, possibly forever making him a pariah within his political party and in the eyes of history. (12) It is also dubious as a legal matter because there is no clear answer whether a self-pardon is lawful. No President has yet pardoned himself, and for most of our history, the issue of whether one may do so was not a remotely significant public policy issue. In fact, it would not even have been a serious hypothetical on a law school final exam.

   The issue could not have arisen in pre-Revolutionary England because, under the common law, the crown could do no wrong. (13) It does not appear to have been an issue for royal governors before the Revolution. (14) The Articles of Confederation did not create an office of chief executive, so the issue also could not have surfaced during the nation's early days. (15) There was limited discussion of any aspect of the pardon power at the Constitutional Convention of 1787, and no one raised this precise issue. (16) Finally, no one asked this question during the state ratifying conventions. (17)

   The issue did not become a serious possibility until Richard Nixon was in his second term as President. The investigation of the 1972 burglary of the Democratic National Committee headquarters at the Watergate office building resulted in the discovery that Nixon had attempted to cover up the involvement of his administration's officials in the crime. (18) That discovery raised the issues of whether Nixon had violated federal criminal law by obstructing justice and whether, as a sitting President, he could be prosecuted for a federal offense without first being impeached and removed from office by Congress. When criminal prosecution of the President became a real possibility, the media speculated that Nixon would pardon himself for his role in Watergate. (19) The Justice Department's Office of Legal Counsel issued an opinion addressing both ends of that possibility. In what might have been intended to serve as a Solomonic resolution, the Department concluded that a sitting President cannot be prosecuted until he is impeached and removed from office, (20) but a President cannot pardon himself. (21) With regard to the latter issue, the Justice Department offered merely a one-sentence conclusion: "Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative." (22) The Justice Department did not explain why the text and structure of the Pardon Clause foreclosed self-pardons or why the role of a President in the pardon process should be analogized to that of a judge. (23) The issue went away when Nixon resigned without pardoning himself and President Gerald Ford later pardoned Nixon for crimes that he might have committed in connection with Watergate. (24)

   The issue arose again late in the presidency of George H. W. Bush. A scandal arose toward the end of Ronald Reagan's second term as President. Termed L'affaire Iran-Contra, a National Security Council official encouraged Israel to sell arms to Iran with the proceeds ultimately transferred to the Contras, anti-communist guerilla fighters in Nicaragua, all in violation of federal law. (25) An Independent Counsel obtained indictments of several former senior government officials, including Caspar Weinberger, Reagan's Secretary of Defense, and the conviction of several others. There was considerable media speculation that then-Vice President Bush knew about the arms sale and could wind up either being charged or brought into court as a witness after he left office as President or that he might pardon himself to avoid prosecution or embarrassment. (26) On Christmas Eve in 1992, however, President Bush pardoned Weinberger and several other officials but not himself. (27) Again, the issue went away.

   The issue resurfaced during the tenure of President Bill Clinton. Independent Counsel Kenneth Starr, later succeeded by Robert Ray, investigated Clinton for potential perjury and obstruction of justice charges based on conduct that occurred both before and while Clinton was President. (28) When asked whether Clinton would pardon himself, Clinton's White House Counsel represented that he would not. (29) On his last full day in office, Clinton entered into an agreement with then-Independent Counsel Ray to surrender his license to practice law for five years in exchange for immunity in connection with all of the outstanding investigations. (30) The agreement avoided any self-pardon issue.

   The issue surfaced for a fourth time after Donald Trump became our forty-fifth President. Concern arose that Russia had attempted to influence the outcome of the 2016 presidential election, and congressional Democrats claimed that the Trump Campaign had been in cahoots with the Russians. (31) Deputy Attorney General Rod Rosenstein, acting in place of recused Attorney General Jeff Sessions, appointed former FBI Director and Justice Department Assistant Attorney General Robert Mueller to investigate the matter. (32) Although the claim ultimately turned out to be bogus, (33) during the course of that inquiry President Donald Trump publicly stated that he had the legal authority to pardon himself to end the Justice Department investigation. (34) A flurry of media commentary followed, taking opposing positions on the legitimacy of self-pardons. (35) Trump did not pardon himself, and the Special Counsel found no evidence that Trump or members of his campaign had colluded with Russia. (36) The issue again arose during the closing weeks of the Trump Administration when speculation arose that Trump might pardon himself for actions that he took in January 2021 when contesting the results of the 2020 election. (37) Trump ended his presidency without pardoning himself, so the issue will (hopefully) remain undecided for the foreseeable future. (38)

   That a President would need to consider immunizing himself against a federal criminal prosecution is, generally speaking, a disturbing prospect, even in today's toxic political environment. (39) Unlike what has happened in some countries (after, for instance, the Communist takeover in Cambodia), new administrations do not bring politically motivated prosecutions against former government officials. There also is no clear answer to the question whether a self-pardon is lawful. Neither the Supreme Court of the United States nor any lower court has had occasion to decide whether a President can pardon himself. (Ironically, we should consider ourselves fortunate that the issue has not arisen with the regularity necessary to generate a body of case law.) No act of Congress takes a position on the subject, and, in any event, any statute would have no more legal force or effect than a "sense of the Congress" resolution. (40) As might be expected, commentators have taken all sides of the issue. A large number of scholars have concluded, like the Justice Department, that a president cannot pardon himself; (41) a comparable number of legal experts have come out the other way; (42) and some have been agnostic on the matter. (43) The disagreement has lasted for decades. (44)

   The legitimacy of presidential self-pardons merits serious debate. (45) Ideally, that issue should arise infrequently, for two reasons. One is our hope that the electorate would select as chief executive only people who steer clear of the line of illegality. The other is our hope that the relationship between the opposing major political parties does not become so fractured that transfers of power from one to the other would result in the civilian version of war crimes trials as each new administration prosecutes its predecessor as a form of retaliation or out of sheer vitriol. A self-pardon would not become a live issue unless a President were at serious legal risk of being charged with a crime. But the issue has now arisen during the terms of four of our last nine presidents, (46) members and supporters of each of our major political parties...