By John Yoo, ,
Published June 07, 2018
President Trump said this week that he has the right to pardon himself from possible crimes related to Russian meddling into the 2016 elections. “I have the absolute right to PARDON myself,” the president tweeted. He then quickly assured us that he wouldn’t use that power.
“But why would I do that when I have done nothing wrong?” the president asked, taking the position that he has no need to pardon himself. He further tweeted that the Russia probe being conducted by Special Counsel Robert Mueller is “UNCONSTITUTIONAL.”
President Trump’s comments followed arguments made over the weekend by his lawyer, Rudolph Giuliani, who is the former mayor of New York City and a former U.S. attorney for New York. Giuliani said the Constitution allows the president to pardon himself.
“He has no intention of pardoning himself." Giuliani told ABC News, referring to President Trump. “It would be an open question. I think it would probably get answered by gosh, that's what the Constitution says, and if you want to change it, change it. But yes.”
A group of prominent lawyers, including Laurence Tribe of Harvard Law School and former White House ethics czar Norm Eisen, immediately fired back.
“The Office of the President is not a get-out-of-jail free card for lawless behavior,” the lawyers wrote in a group letter. “Our Founders would not have created – and did not create – a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.”
This time, Trump and Giuliani have the better of the chattering class. Article II of the Constitution declares that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.”
A careful reading of the plain text shows that the framers made only two exceptions to the pardon power. First, the president cannot issue pardons for state crimes, only violations of federal law. Second, the president cannot issue pardons for impeachment.
The constitutional text contains no other limitations on the presidential pardon power, and the Supreme Court, as recently as 1974, has never attempted to impose one.
Historical evidence from the Constitution’s framing cannot overcome the plain meaning of the constitutional text – if anything, it supports this textual reading.
To be sure, the 1787-88 debate in the states over whether to adopt the Constitution did not extensively discuss the pardon power.
But in the main guide to the Constitution’s meaning offered by its supporters, The Federalist Papers, gave two reasons for the pardon power.
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.”
In other words, the president can issue pardons when the law produces harsh or absurd results, such as a small-time thief who, under a three-strikes law, might go to jail for life for stealing a pizza. Mercy has propelled most of the pardons issued by presidents in our history.
Foreshadowing the attack of modern Trump critics, opponents of executive power argued that the president might misuse the power to pardon his co-conspirators in a treason plot. During the Philadelphia Convention, which drafted the Constitution for state approval, Virginia Gov. Edmund Randolph proposed that a third exclusion from pardons join those for state crimes and impeachments: prosecutions for treason.
Randolph argued that “the prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”
James Wilson responded: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive.” Wilson, however, suggested that a president could still be prosecuted for treason. “If he be himself a party to the guilt he can be impeached and prosecuted.” Randolph’s motion lost by 8 states to 2.
In publicly responding to Randolph’s claim when the Constitution went to the states for ratification, Hamilton provided a second, broader justification for the pardon power and rejected limits on its self-dealing use.
According to Hamilton in Federalist 74, the anti-Federalists argued that “the connivance of the chief magistrate ought not to be entirely excluded” in cases of treason. They demanded instead that the Constitution give Congress the power to pardon.
Hamilton refused to accept a limit on the pardon power, even for those who conspire with the president, even for the president himself. Instead, Hamilton explained that an unfettered pardon power could be critical to ending public disorder or civil war.
“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,” Hamilton wrote. Only the president, Hamilton argued, could act vigorously in times of crisis and use pardons to “restore the tranquility of the commonwealth.”
Hamilton’s argument on the pardon power advanced his core thesis that the Constitution must concentrate the executive power in a single person, the president, so that the nation could act with decisiveness, speed and energy.
Hamilton’s wisdom undoubtedly served the nation well during the Civil War, when President Abraham Lincoln used not only the executive power to respond energetically to the existential threat of secession, but also used the pardon power to begin the process of national healing.
The benefits of such a power, Hamilton believed, outweighed the possibilities that a future president might use pardons to corruptly benefit himself. Attempts to read an anti-self-dealing principle into the pardon power, where none appears in the text, are incorrect. They amount to the type of judicial activism that has undermined the legitimacy of the Supreme Court and does violence to the process for democratic self-government written into the Constitution.
But just because President Trump has the constitutional power to pardon himself, prudence and political tradition urge him against using it.
If President Trump believes that Mueller is acting improperly, the remedy is to fire Mueller, not to preemptively pardon himself and everyone subject to the investigation.
Indeed, a self-pardon could rise to the level of a “high Crime and misdemeanor” sufficient to launch impeachment proceedings against President Trump.
Impeachment remains the Constitution’s mechanism for punishing, in Hamilton’s words, “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
If President Trump were to use the pardon power for himself, even if constitutionally possible, he could provide Congress the grounds it needs to remove him from office.