Posted by Ryan J. Suto on June 04, 2018 in Blog

Monday morning President Trump tweeted, “…I have the absolute right to PARDON myself…” in a tirade about the investigation of Special Prosecutor Robert Mueller. The tweet cited “numerous legal scholars,” one of whom was likely the president’s personal lawyer Rudy Giuliani, who stated, “in no case can [the president] be subpoenaed or indicted… no matter what it is.” This assertion, that the president has the power to pardon himself, is incorrect, undermines democracy, and is a dangerous political statement.

Trump’s tweet is an incorrect interpretation of U.S. law.

The U.S. Constitution allows for the President to grant pardons in Article 2, Section 2, Clause 1: “The President shall… have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” While the text does not explicitly mention the scenario of a self-pardon, the Constitution was not written to account for all potential legal scenarios. If the Constitution were written to address every governance quandary, as Chief Justice John Marshall wrote in McCulloch v. Maryland, it would “partake of the prolixity of a legal code” and would no longer be a constitution by We the People, but a full body of law which no one could fully grasp. Instead, the document marks the law’s “great outlines,” allowing “minor ingredients which compose those objects be deduced from the nature of the objects themselves,” as Marshall explained.

Deducing from the text, the Constitution itself is, if nothing else, a document which prevents individuals from securing benefits for themselves. For example, Congress cannot give itself a pay raise without an interceding election (Amendment XXVII), the President cannot receive a pay raise without an interceding election (Article 2, Section 1, Clause 7), and a member of Congress cannot be appointed to an office which has been given a pay raise during that session (Article 1, Section 6, Clause 2). The American legal tradition also rejects judging one's own case, and has done so consistently since at least 1610. James Madison wrote in Federalist 10 that the Constitutional system shared this view, writing “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” This concept has been affirmed by the Supreme Court in Calder v. Bull, writing “a law that makes a man a judge in his own cause… is against all reason and justice for a people to entrust a legislature with such powers.” A president having the ability to pardon him or herself would be both self-dealing and self-judging, running counter to structure, intent, and interpretation of the Constitution and its legal context. Structural arguments have been used to uphold the power of judicial review, the right to privacy, and the anti-commandeering doctrine. Those same lines of argumentation point to the unconstitutionality of the self-pardon.

In 1974 President Nixon found himself in similar waters as President Trump does today: he was under investigation by a special prosecutor for activities surrounding his most recent electoral victory. An experienced government bureaucrat, Nixon sent a question to the Department of Justice’s Office of Legal Counsel (OLC): Can the President can pardon himself? In a memo dated August 5th OLC declared, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Four days later, President Nixon resigned from the presidency.  

Trump’s assertion undermines the rule of law, a foundational pillar of democracy.

Democracy itself requires procedural rules to constrain political competition. Without these rules, to which all significant groups must agree, political competition can become violent or destructive. In the context of maintaining and supporting a fully democratic legal system, the rule of law means that laws are public and created in agreed-upon processes, similar cases are treated similarly, and that no institution or public official can unilaterally escape the consequences of unlawful actions. That is, individuals are equal under the law and no individual is above the law. As the Supreme Court held in U.S. v. Lee, “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” Conversely, a state which fails to follow the rule of law will risk undermining its democracy.

By asserting the ability to pardon himself, President Trump is claiming that he can violate federal law and face no legal consequences, while at the same time expecting legal consequences for his predecessor’s actions in office. Without formal assurances of basic concepts of political fairness, groups will lose the incentive to respect opponents or electoral outcomes. President Trump’s statement that he is above the law echoes assertions made by authoritarian regimes such as Egypt under President Morsi and Tunisia under President Ben Ali. This assertion, combined with his reticence to promise to accept the results of the 2016 election were he to have lost, sows legitimate doubts as to whether he would not illegally interfere with the 2020 election, only to pardon himself if he were to win or refuse to accept the results if he were to lose. His tweet may also pave the way for future presidents to place him or herself above the law.

On a fundamental level, President Trump’s tweet itself is a threat to the concept of restrained power, and is much more than a mere “hypothetical exercise” as the White House has called it. The president is attempting to build legal legitimacy to support his desire to evade legal consequences. The harmful policies, xenophobic rhetoric, and dangerous appointments of this administration can be overcome through sustained advocacy and voter engagement. But the degradation of the foundations of democracy and the elevation of the office of the president from a public servant to the embodiment of American sovereignty may see no methodical or peaceful repair.

In her short life, America has survived far worse than a president with spurious tweets. The context of history requires that thoughtful analysis refrain from hyperbole and reactionary commentary. But the current predicament cannot be ignored: a polarized public, confused by misinformation and spin, is represented by lawmakers who identify more strongly with their parties than with their Constitutional roles as checks against the other branches of the federal government. The last ingredient, a president with political and legal impunity, threatens to be the straw that breaks the Constitution’s back.

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