After pardoning 70 individuals, many of whom have been in his inner political circle, the question looming is whether Donald J. Trump can pardon himself. The answer is no.1
Trump has previously declared that he would do so. In 2018, during the Mueller investigation, he stated: “I have an absolute right to pardon myself….” He is, once again, wrong. That conclusion is based on the true etymological meaning of the Pardon Clause under the Constitution, the Framers intentions when the clause was drafted and subsequent history of its interpretation.
The Constitution’s Pardon Clause reads: “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
First, what is meaning of the English words “grant reprieves or pardons?” The term “pardon,” borrowed from the French language, means to make a donation or gift. And the act of act of gift-giving requires two parties — both a donor and a recipient. Think of the phrases “pardon me” or “I beg your pardon,” both of which require two parties as one is asking for another’s acceptance of their actions. Similarly, the term “grant” implies two persons. Essentially, it means to give something to another; i.e., a two party transaction.
Second, pardons are not an American invention. The concept is derived from the issue of clemency, where the king is the source of law and he may release another of that law. Hence, historically in Anglo-American history — from the Magna Carta to the Constitutional — a pardon has always meant two parties – a grantor (from the executive branch) and an individual grantee. Never, in history, has a monarch, king, royal governor, or similar official pardoned himself. Thus, historically, the universal and centuries-old understanding which led to that phrase in the Constitution, leads one to conclude that the Framers intended that the Pardon Clause relate to the grant to another individual. Certainly, the Framers could have either added another sentence to that clause or even verbiage to make it clear that the President can allow himself to escape criminal prosecution. It does not.
Further, the Framers considered and expressly rejected the concept of an American king. Having suffered from a monarch, the very basic premise of the Framers was to not be subject to a king. In fact, the essential premises of the Constitution rests on the doctrines of “separation of powers” and “checks and balances.” No branch of government is above the law and by allowing a president the inherent right to issue a self-pardon would place him in that position.
The Framers also made it clear not only that there would be no president-for-life, by limiting the term, but provided for other checks on a president. For example, the removal of a president by impeachment makes it clear that he or she is subject ot the rule of law. Even Article I, Section 3 of the constitution makes it clear that a President is subject to indictment and punishment. The President, unlike a king, is therefore subject to federal criminal prosecution
And courts, in interpreting the Constitution, courts have made it clear that presidents are not above the law. Justice James Iredell, one of the very first U.S. Supreme Court justices, stated that where a president is guilty of criminal misconduct, he “is not exempt from trial.” And since then, it has become clear that a president is not above the law. It logically follows that a president cannot simply pardon himself. If he were able to do so, he would be above the law.
Finally, the Justice Department made it clear that a sitting President may not be criminally prosecuted while in office. It practically follows that he can be prosecuted thereafter. Certainly, as we have seen over the past 240 years, the framers were very particular in using their words. And those words, strictly speaking,2 would result in the inescapable conclusion that Trump cannot pardon himself.
1There are two circumstances that are not discussed herein. First, any pardon only relates to federal offenses. Thus, none of them, no matter who Trump chooses to grant a pardon, is unable to allow those individuals to escape criminal prosecution form the states. Second – and while this concept may sound utterly insane – there is a chance that Trump resigns shortly before Biden’s inauguration to have Vice President Pence installed and then pardon him. While that concept would make a mockery of the presidency, in light of the four year history of Trump’s unprecedented actions, that possibility is not unrealistic. I, for one, do not think that Pence will lower himself to that level.
2Trump appointed justices who believe in the strict construction of the Constitution. Ironically, those three justices, were they to interpret the Pardon Clause, would most certainly rule against him.