The Nonsensicality & Possible Consequences of the "Self-Pardon"

January 18, 2021

If you will forgive me, in the interests of getting this post out in a timely manner I have not included citations here. It does take time to add the citations. I will add them later and you can reference them at that time if you are interested.

Some argue that there is nothing in the Constitution that prohibits a president from pardoning himself. That is incorrect. The prohibition is contained in the definition of pardon itself. A pardon is something that one person confers on another. You will surely hear someone ask: “Why didn’t the framers explicitly say that a president cannot pardon himself?” It would have been as strange to the drafters of the constitution as saying the president cannot be a cat. The principle of no person sitting in judgment on himself supports this, but the word pardon itself forecloses the possibility of self-pardons. In fact, we need to invent a new term – self-pardon – just to describe the concept.

The last report I saw before writing this was that Trump would not pardon himself or members of his family. There are a number of very good reasons for him to stay on this course.

1. If he pardons himself, he is daring federal prosecutors to file criminal charges against him. At the very least, this should happen to resolve the question of whether such a use of the pardon power is legal.

2. If he pardons himself, he is encouraging state and local prosecutors to file criminal charges against him to ensure he does not escape justice. This will be heightened if the Senate does not convict Trump in the impeachment trial.

3. If he pardons his family members, he will encourage state and local prosecutors to file criminal charges against them. For what? I assume for whatever reason they need a pardon. Such pardons will further incentive journalists and others to dig for whatever crimes they have committed and, once evidence is brought to light, prosecutors can take it from there.

There is something important at stake here that I doubt Trump appreciates – but that he may have been convinced by lawyers and aides is a very real thing: the institutional blowback he is likely to take as a result of pardoning himself or his family members. One thing that becomes clear in researching the impeachment power and the pardon power is how closely they were related in the thinking of the framers of the constitution in the 18th century. Both powers arise out of the political disputes between Crown and Parliament from the 14th century. The Crown would appoint government ministers unacceptable to Parliament. Parliament would impeach those ministers. The Crown, in turn, would pardon those ministers. At some point, Parliament declared that pardons were not enforceable against impeachments.

No one ever seriously (as far as I can tell) claimed that the monarch could pardon him or herself. One may argue that that is because of the nature of the monarchy itself, but it is more about the nature of the pardon power. In 1648, Parliamentarians supporting Cromwell executed Charles I for treason. This was not a summary execution (although it was certainly a political trial). Charles was tried in a court, found guilty, and sentenced to death. At no point did Charles or any of his supporters even consider issuing a self-pardon, even as a last ditch effort to save the king’s life. That’s significant. Even in 17th century England, the king had no authority to make the pardon something it is not. The reason for this is that the pardon, an idea that goes back far earlier than that of impeachment in the Catholic Church, is something that can only be given by one person to another person.

In Catholicism the pardon is found in the sacrament of reconciliation. One can be forgiven one’s sins as long that person confesses those sins to a priest (i.e., another person), demonstrates repentance (i.e, is sincerely sorry for committing those sins), and performs some sort of atonement for those sins (usually consisting of prayer, service, or both). No person can reconcile themselves; grace can only be given by another. That includes the pope. The pope cannot absolve himself; he must confess to a priest if he wants absolution. This concept of reconciliation, which is the genesis of the pardon power in English law (and consequently in American law), was incorporated into the Church of England upon separation from Catholicism under the reign of Henry VIII.

To understand the kind of institutional blowback Trump would be risking if he pardoned himself (and, but probably to a lesser extent, his family), we need to consider the early 17th century English decision in Dr. Bonham’s Case. (Thomas Bonham v. College of Physicians, 77Eng. Rep. 646 (C.P. 1610).) Written by the legendary Lord Edward Coke, the decision is often cited as – and criticized for – being an early exposition of the concept of judicial review. However, relevant to our conversation today it is the earliest source for the Anglo-American legal maxim that no person may be the judge in his or her own trial. That is, no one is above the law. Not even a president.

English law was imported to the American colonies beginning with the establishment of those colonies in the early 17th century. As the colonies gained their footing as relatively self-governing entities during this century, the issue of impeachment and pardons as well as the concept of no one sitting in one’s own judgement played out on the political stage in Britain in real and far-reaching ways. By 1660, when the monarchy was restored after Cromwell’s Commonwealth, the king (or queen) no longer had any claim to absolute authority. That was further eroded in the Glorious Revolution of 1688, in which James II was forced to flee the country while Parliament installed William and Mary as co-monarchs with important royal concessions to the civilian government.

All of this was fresh in the minds of the framers and drafters of the constitution in the late 18th century (see here for a description of how impeachments played out in American colonies in the professional lifetimes of most of the lawyers who drafted the constitution). Consequently, the use of the pardon power and impeachment were considered with the understanding that no person is above the law. Impeachment being a device to remove a president who has overstepped his authority and pardon being a device to allow a president to correct where either the Congress (through legislation) or the judiciary (through trial and conviction) has overstepped. There was no discussion we know of about whether a president could issue a pardon to himself. If you think of the legal and political context that the Philadelphia convention was convened in, it makes sense that no one would waste two minutes or any amount of precious ink making sure that everyone understood that the president could not do something that everyone understood a president (or even a king or a pope) could not do.

What kind of institutional blowback might Trump face if he pardons himself? Here are few examples:

1. The argument against conviction in the impeachment trial gets tougher. It cannot be correct that a president can commit crimes against the Republic in his final days, pardon himself, and then not be held accountable by Congress through impeachment and conviction. This would essentially make the president an absolute monarch for at least several weeks every four or eight years. There would be no reason for any Senator to show mercy towards Trump. Just the opposite is more likely.

2. As noted above, there is no such thing in nature as a “self-pardon.” Even without public pressure – and there will be public pressure if this happens – some federal prosecutor will likely believe that the issue needs to be settled and will file charges. (On what? you ask. Just think of something; Trump has arguably committed many crimes while in office.) If Trump is wrong, he could face criminal liability where he might otherwise have avoided it.

3. The counter-argument to acquitting Trump in the impeachment trial after he pardons himself would be that the states can hold him accountable if necessary. And, you can be assured that this will become more likely if Trump escapes justice otherwise. The Manhattan DA will probably file criminal charges soon anyway. The Fulton County (Georgia) DA is weighing criminal charges for Trump’s attempts to threaten and extort the Secretary of State over the election results. It’s not clear at the moment that she will file charges, but she might take it more seriously should Trump not be held accountable by Congress or in the federal courts. Don’t think for a minute there might not be a dozen other jurisdictions that could find arguably criminal behavior by Trump or his family members and open active investigations.

To be sure, I am not saying that all or any of these reactions will happen if Trump pardons himself. But they are very real possibilities and Trump will be playing with fire if he attempts it. We should know very soon what his move is. After we see what pardons he makes before noon on Wednesday, we can start discussing the one other limitation on the pardon power: buying and selling pardons.

In concluding this post, I will refer you back to the first paragraph for an example of how the pardon power is supposed to work. I have sinned in not including sources in this post. I am sorry for doing so and ask for your forgiveness as well as offering to make it right as soon as I can. It’s up to you to decide whether to pardon me for this sin. I can’t absolve myself. That’s not how pardons work.