No, the Constitution Does not Allow President Trump to Pardon Himself

by Dale Carpenter

Since 2016, Dale Carpenter has been the Judge William Hawley Atwell Chair of Constitutional Law and Professor of Law at SMU Dedman School of Law. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and LGBT rights. He serves as Senior Policy Advisor for the American Unity Fund.

Now that the House of Representatives has impeached President Trump for a second time, this time on an allegation of inciting insurrection against the U.S. government, the potential consequences for his words and actions are becoming clearer. He might be convicted in the Senate and disqualified from holding future federal office. Aside from the Senate trial, he might also be tried in federal court on a range of charges related to the attack on the Capitol.

All of this once again raises the question: Can he pardon himself? He tweeted in 2018 that he had the right to do so, but does he?

Not according to the words, history or structure of the Constitution. In fact, such an action would erode foundational legal principles in our republican form of government. No person can be a judge in his own case. Nor is the president, unlike an absolute monarch, above the law.

Article II of the Constitution gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” A “pardon,” issued from a properly vested governmental authority, relieves a person of the legal consequences of a criminal act. The power was borrowed from England, but as with many constitutional concepts, it has been adapted to the distinctive American context and does not even apply to state crimes.

While the power is broad, it is not unlimited. For example, in Ex Parte Garland (1866) the Supreme Court interpreted it to apply only after the underlying offense has been committed. The main reason for King James II’s forced abdication, after all, was his attempt to exercise a power of suspending the laws. Even the royal pardon power did not encompass a license to disobey all law.

But American constitutional principles go further, confining executive power in ways that would have been alien to a monarchy. For example, an English sovereign’s term was lifelong. A king could not be prosecuted, so the question of self-pardon never arose. By contrast, the president is an executive for a defined term and enjoys only limited powers that are constrained by law, a written constitution and the other branches of government. A president is not immune to criminal prosecution after leaving office.

Read entire article at Made By History at the Washington Post