Can President Donald Trump pardon himself? That question, according to Anthony Scaramucci, newly appointed Director of White House Communications, arose in a conversation that he had with the president last week.
Scaramucci was quick to point, however, that Trump said he does not need to pardon himself since he has done “nothing wrong.”
Whether hypothetical or a probing discussion to fully understand the scope of the executive pardoning authority, the fact that President Trump raised the important constitutional issue invites further scrutiny. While the presidential power to grant pardons is, indeed, very broad, it is not absolute. A self-conferral of a pardon by Trump, or any other occupant of the White House for that matter, would be anomalous in the extreme and without foundation in our constitutional architecture.
President Trump is not the first to consider a self-pardon. Under the crushing pressure of the Watergate investigations, with full recognition that his days in the White House were numbered, President Richard Nixon apparently asked his attorney, Leonard Garment, if he might pardon himself. Garment wisely replied that the answer was “no,” and if he did try it, “heads would roll, including your own.” There is no evidence to suggest that any of the predecessors of Nixon and Trump had raised that question.
The Framers’ greatest nightmare in vesting the president with the pardon power, the most imperial and perhaps delicate of his powers, was that he might exercise it to spare aides and cronies in a manner that would “shield” himself from an investigation. In the words of George Mason, a delegate to the Constitutional Convention from Virginia, the president might “prevent a discovery of his own guilt.”
Against this nightmare—subversion of the Republic by pardons—James Wilson of Pennsyvlania, who was second in importance to James Madison as an architect of the Constitution, said that if the president was involved in such a scheme, which might take the form of treason, that he could be “impeached and prosecuted.” That assurance –abuse of the pardon power would warrant impeachment—assuaged the Framers’ concerns about vesting the pardon power in the president.
At the time of the framing, the essential meaning of the phrase, “ the rule of law,” implied executive subordination to the laws and Constitution of the United States. A presidential conferral of a self-pardon would, manifestly, exalt him above the law. There was not a single hint in the Convention that the president might enjoy, as Wilson put it, a privilege “not annexed to the character” of any other person in the nation.
Nothing said in the Convention affords the conclusion that the president might pardon himself, an act of grotesque proportions that would subvert the republic. Indeed, there is nothing in the creation of the executive, its sharply limited powers, and great duty to enforce the law, that even intimates or flirts with the idea that the president may, with the stroke of a pen, place himself beyond the reach of the criminal justice system.
If the circumstances arise, President Trump may choose to grants pardons to aides and, yes, even family members, but the implications of such an exercise of authority would invite strict scrutiny by members of Congress, the press, and the public, who would wonder, with the Framers, whether the act was designed to shield himself from further inquiry. If the president uses the pardon power in such a wholly cynical manner, then the burden would fall to Congress to consider whether the pardon power had been abused and warrants impeachment.
David Adler is President of the Alturas Institute, which promotes the Constitution and civic education. He has lectured nationally and internationally on the Constitution and presidential power, including the scope of the pardon power.