1974, September 8 – The Oval Office – The White House – Washington, DC – Gerald R. Ford – signing Nixon Pardon – President Gerald R. Ford signs the Nixon Pardon
Suppose a man shoots and kills another in broad daylight in the presence of hundreds of witnesses. He then mutters the magic words, “Pardon me,” and walks off. Will the law hold him accountable despite the pardon? It certainly will. But what if that man is the President of the United States?
This isn’t a question on a law school exam. In early 2016, presidential candidate Donald Trump joked that he could shoot someone on Fifth Avenue and not be held accountable, at least not by his supporters, and at least he seemed to be joking. But now speculation is rampant that he will issue himself a blanket self-pardon in the final dark days of his presidency to escape prosecution for any and all criminal misdeeds from the beginning of time to the date of his signing an executive order to that effect.
This raises two questions. Although the Constitution gives the president broad power to pardon, can he pardon himself? And, would impeachment and conviction invalidate any such pardon?
Legal experts regularly opine on the first question, but the subject has taken on a new dimension in light of the tragic, deadly, shameful events of January 6, 2021, when Donald Trump spoke to a large crowd of supporters gathered near the White House. The result, according to a draft House impeachment resolution, was: “Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced members of Congress and the vice president, interfered with the Joint Session’s [of Congress] solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.”
The Supreme Court has never ruled on whether a self-pardon by the president is constitutional because no president has done it. Legal scholars advance arguments on both sides, yet few have spoken to the interplay between the president’s power to pardon and Congress’s power to impeach.
The most authoritative opinion is a short memorandum written on August 5, 1974 by the Office of Legal Counsel (OLC) of the Justice Department. OLC is sometimes called the attorney general’s lawyer. OLC concluded a president may not pardon himself, saying no man can be a judge in his own case. However, it continued, under the 25th Amendment, a president might allow the vice president to become president and receive a pardon from him. After the pardon, the president could either resign or resume office. By this artifice, he could free himself of criminal liability for past actions. The memorandum was written at a time when the impeachment of Richard Nixon was a virtual certainty. On the very day OLC’s memorandum was written, the White House released transcripts of Nixon’s conversations with aides, showing him to be complicit in the Watergate cover-up. Four days later, Nixon resigned. Vice President Gerald Ford succeeded to the office. He then granted Nixon a blanket pardon for all criminal acts Nixon might have committed as president. Given the timing and brevity of the memorandum, the Justice Department had presumably been asked to bless the scheme for Nixon to resign in exchange for a pardon.
Donald Trump has given no indication that he will avail himself of Nixon’s escape hatch. However, the House of Representatives is beginning his second impeachment only ten days before Trump’s term ends. The president’s leaving office does not in and of itself stop the impeachment process though, and continuing it and convicting the president might well convince the courts that any self-pardon is invalid.
Despite doubts over whether a president can self-pardon, Trump might choose a pardon and litigate strategy, pardoning himself before leaving office and letting the courts decide if the pardon is valid. Trump has done this before. After New York County District Attorney Cyrus Vance began an investigation of his business transactions in the summer of 2018, Trump sued to block a subpoena of his tax records. The Supreme Court disposed of the challenge in July 2020, two years after Vance’s probe started. But the legal maneuvering continues, and Vance has yet to see the records.
The arguments against the constitutionality of a self-pardon are strong. Kings were above the law and never needed to pardon themselves, but not so presidents. The founders rejected proposals to make the chief executive of the United States a king. And a president who pardons himself effectively puts himself above the law, a king unanswerable to law.
While the validity of any self-pardon would ultimately be decided by the Supreme Court, a second impeachment would add another arrow to the prosecutors’ quiver in the Supreme Court. The reason for this is rooted both in the precise language of the Constitution and in a colloquy at the Constitutional Convention.
The president’s pardon power flows from Article II, Section 2 of the Constitution: “The President…shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The impeachment power comes from Article I, Section 2, which vests the House with the sole power of impeachment, and Article I, Sections 3, which gives the Senate the sole power to try impeachments. If the Senate convicts, it can do no more than remove someone from office and disqualify him from any “office of honor, trust or profit under the United States.” However, Section 3 continues, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to the law.”
At first blush, this seems to say only that the convicted party cannot be restored to office if the Senate judgment bars him from such. For example, if convicted, Trump couldn’t run again for president, he couldn’t be given the Medal of Freedom, and he can’t be a dog catcher at a federal facility.
But what does the impeachment clause mean by saying a convicted party is nevertheless liable to indictment and trial? Was this intended to make clear that someone who is impeached can still be prosecuted in court for any underlying crime? Or does it limit the president’s pardon power under Article I? That is, do impeachment and conviction override a presidential pardon? The language can be read to suggest that even if Trump pardons himself, a Senate conviction can invalidate the pardon and open him up to prosecution.
This gains support from a well-known but ambiguous colloquy between George Mason and James Madison at the Constitutional Convention. Mason gave the example of a corrupt president who tried to “establish a monarch, and destroy the republic.” What prevented such a man from using the pardon power in the Constitution to further his conspiracy, he asked.
Madison answered that in such case, Congress could use its impeachment power. What did Madison mean? Was he speaking loosely and dismissing Mason’s question by stating the obvious, that Congress could impeach a corrupt president? Perhaps, but this wasn’t Mason’s question. His question was what check is there in the Constitution to prevent a president from using his pardon power in aid of a conspiracy to overthrow the government. If Madison understood the question, and surely he did, then he was saying that impeachment would vitiate any pardon given in aid of the conspiracy, including a self-pardon. The implication of the exchange between Mason and Madison is that Madison understood the impeachment clause to mean that if a president pardons himself, Congress can cancel the pardon through impeachment.
This interpretation is certainly consistent with the language of the Constitution. The president’s pardon power does not extend to cases of impeachment, and, if impeached and convicted, a president cannot pardon himself and block prosecution for the underlying crime.
In sum, although there are strong reasons to believe that a president cannot pardon himself, impeachment and conviction would add force to the argument that he can be held accountable.
