Letter: Presidential pardon is complicated
Can the president pardon himself? Professor Robert Sedler says yes (“Trump could pardon himself from crimes committed in office,” June 27), noting the irony that he, a liberal, would conclude that President Trump has this power.
That irony is sad — done properly, constitutional law is not just the continuation of politics by other means. Professor Sedler is an admirably principled scholar, but I must offer my principled dissent. I have studied self-pardons since the 1990s, through Democratic and Republican administrations, and held all along that self-pardons should be considered invalid.
The first reason is textual. Professor Sedler’s argument rests on the Constitution’s broad language giving the president the pardon power, and the lack of any explicit exception for self-pardons. He concludes that “there is no basis for reading into that provision words that are not there.” But the pardon power is limited by the definition of the word “pardon” itself.
For instance, you cannot be pardoned in advance for some future crime; pardons are only for past acts. That limit is not explicitly stated in the Constitution—it is implicit from what a “pardon” is.
In a similar way, courts could conclude that self-pardons are not “pardons” either. They would hold that a pardon is something you can only grant to someone else. It would not make sense to “donate” money to yourself or “condone” your own actions (two words with the same Latin root as “pardon”). A self-pardon makes no sense either.
The second reason is historical. The record suggests that the Constitution’s drafters did not think self-pardons were possible. At the Constitutional Convention, Edmund Randolph argued against allowing presidents to pardon treason.
“The President may himself be guilty,” worried Randolph. “The Traytors may be his own instruments.” But Randolph’s motion failed after James Wilson pointed out that “[i]f [the president] be himself a party to the guilt he can be impeached and prosecuted.”
If Randolph had thought self-pardons were possible, surely he would have moved to restrict them. And if anyone present had thought self-pardons were possible, Wilson’s point that a perfidious president could be prosecuted would not have been the least bit reassuring. Similarly, if Alexander Hamilton had imagined that presidents could self-pardon, he would not have noted in Federalist Paper No. 69 that a criminal president could be removed from office and “would afterwards be liable to prosecution and punishment in the ordinary course of law.”
The third reason is the venerable principle that a person cannot be the judge in his own case. This concept is not stated explicitly in the Constitution, but the Supreme Court has recognized it as “a mainstay of our system of government.” To be sure, some judges are uncomfortable with using external considerations like this to resolve constitutional cases. Some judges are perfectly comfortable using them, though, and this would be an appealing, intuitive one.
Professor Sedler and I agree that the self-pardon question will not be resolved until and unless a president pardons himself. Ideally, then, it will never be resolved. No one can say for sure that a president cannot pardon himself, but it is easy to conclude that he should not.
Brian C. Kalt, law professor
Michigan State University