Jubilation among Bay Area Democrats about the presidential election is tempered not only by the president’s refusal to concede but also by the prospect that he will grant himself a lame-duck, blanket pardon.
The Constitution does not expressly preclude the president from pardoning himself for federal crimes. Can anyone stop him from doing so? Not Congress. In United States vs. Klein, the Supreme Court in 1872 recognized that the pardon power granted to the president by the Constitution is “without limit” and cannot be modified, abridged, or diminished by Congress. Though pardons have been litigated, the Supreme Court has refused to limit the president’s discretion. No category of federal crime is off-limits.
Does that mean that a presidential self-pardon is unreviewable by the Supreme Court? Not necessarily. “Originalism” — the method of constitutional interpretation endorsed by a majority of the current court — dictates that the Constitution be interpreted according to its meaning at the time it was adopted, rather than what modern society thinks it should mean.
So if a legal challenge to a presidential self-pardon were brought to the court, what would the justices discover about the meaning of the word “pardon” in the late 18th century? They would find that it was widely understood to involve two parties: the one who grants the pardon and the one who accepts it. For example, in Federalist 78, Alexander Hamilton observed, “The reflection that the fate of a fellow creature depended on (the president’s) sole fiat, would naturally inspire scrupulousness and caution.” The idea of pardoning oneself would have been considered just as illogical as marrying oneself or stealing from oneself. In short, the court would be warranted in ruling that a self-pardon is not, in fact, a pardon at all, and is therefore subject to judicial review.
Next the court would inquire whether such a pardon is a permissible exercise of any of the president’s other constitutional powers. This question has never been addressed by the court, but a search for the general understanding of executive power at the time of the founding would lead them to conclude that, based on English common law dating at least to Dr. Bonham’s Case in 1610, “no person may be a judge in his own cause.”
This same principle was central to the political theory of John Locke, whose writing heavily influenced the founding fathers. (Significantly, when Justice Amy Coney Barrett was asked during her recent confirmation hearing if a president has the authority to pardon himself, she declared no one is above the law.) A third consideration facing the court would be preserving its own reputation. Popular confidence in the court is crucial to its influence. Chief Justice John Roberts has shown particular concern about protecting the court’s prestige. If the court fails to prevent President Trump from flouting the plain meaning of the pardon power, it will reinforce the perception that its members are merely politicians in robes rather than impartial arbiters of the Constitution.
If the court’s conservative justices care about the court’s legitimacy, and if they are true to their professed method of constitutional interpretation, they should declare a self-pardon to be impermissible. It is contrary to the universally understood meaning of the term “pardon.” And it violates core principles of our legal heritage: that no one should be a judge in his/her own case; that the United States is a nation of laws, not people; and that the president is not above the law.
Steve Woolpert is a professor of politics at Saint Mary’s College.