Each fall, when I teach “Introduction to American Government” and discuss the power of the presidency, I always argue that the pardon power is the most significant and strongest power of the president.
For one thing, it is one of very few constitutionally unilateral powers. In issuing a pardon, the president does not need advice and consent from the Senate—as he does in hiring for the executive branch, making judicial appointments, and signing treaties—and the decision is not reviewable by the Supreme Court. Further, it is the only power that specifically undercuts the legitimate constitutional authority of the other two branches. It exempts someone from having to obey a legitimate law passed by Congress and from being punished for violating that law.
Thus, when Rudy Giuliani opined that “the president probably has power to pardon himself,” he was making a pretty shocking claim, one that has led to much debate. Despite the audacity of such a claim, an examination of the philosophical foundation of the pardon power and of the debate over it at the Constitutional Convention reveals that Giuliani is actually right.
Pardons and Prerogatives
The need for the pardon power may seem difficult to comprehend, but it arises from the very nature of “rule by law.” One of the major benefits of a system of laws, as opposed to rule by a person, is that it treats all people in the jurisdiction the same. Everyone under the law must act the same; the law favors no person because of his or her position, wealth, or power. This fundamental equality before the law is the heart of our constitutional and legal system. However, that very benefit also has a flaw: laws are often too general.
The law, like a fishing net, often captures actions that were not intended to be captured, and sometimes even punishes acts that support the goal or intent of the law. For example, if your neighbor’s house were on fire, and you went into his garage (trespassing) to fight the fire and smashed his car window to push the car out in the driveway to safety, you clearly violated laws in order to actually promote the goal of laws (protecting your neighbor’s property). One would hope that you would not be prosecuted for these acts, but that would require someone to have discretion—and the ability to go around or even against the law’s general treatment.
This issue of needed discretion was understood by John Locke, who, in his Two Treatises of Government, argues for discretion. He writes that we must “provide for the public good in such cases which, depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct” (II.158). This power Locke calls “prerogative.”
Because of the undeniable connection between Locke’s prerogative power and the constitutional pardon power, it is worth examining the limits of the former to understand the limits of the latter.
Locke recognizes that the prerogative power does not merely involve unforeseen circumstances but also “the power to act without the prescription of the law, or even sometimes against it” (II.160). This is a significant power, because it is unbound by the legal order, allowing the ruler to act beyond or against the law. The question is, is there any limit to this power? Locke answers with an emphatic “yes.”
In every discussion of prerogative, Locke notes that all discretionary acts must be “for the public good” (II.156, II.158, II.160), and thus it is clear that the discretionary use of the power must further the primary goal of the political union, which is the public good (II.131). Locke recognizes that the application of this power can lead to a debate whether any particular instance is actually for the “public good,” observing that
the people are very seldom or never scrupulous or nice in the point or questioning of prerogative whilst it is in any tolerable degree employed for the use it was meant—that is, the good of the people, and not manifestly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative, to the good or hurt of the people, will easily decide that question. (II.161)
Thus, Locke recognizes that the public itself must determine whether an act is for the public good. Locke also recognizes that if the discretionary power is used beyond its purpose, that does not invalidate the act, because the power is itself unchecked. Ultimately “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven” (II.168). Thus, the presence of prerogative power inherently means there can be no checks upon its use.
Is it possible that a ruler could use the pardon power on himself for the sake of the public good? It is conceivable. However, even if such a use is not for the public good, there is no higher human authority to whom the people can appeal—at least according to Locke.
Are Presidential Self-Pardons Constitutional?
But does the Constitution, particularly as our founding fathers understood it, really allow the president to pardon himself?
Article II, section 2 notes that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The president’s pardon power cannot extend to state criminal acts, as those are outside his jurisdiction (though most states give their governors some pardon power). Thus, the pardon must apply to a federal crime, and there were at first few federal crimes. Treason, piracy, and murder or larceny in a federal territory were the primary ones. Importantly, however, there were criminal laws about the integrity of the judicial process, which include perjury, bribery, and obstruction of the judicial process. Thus, the founders recognized the ability to pardon for everything from treason to obstruction of justice.
Would our founders think the president could pardon himself? On September 15, 1789, the Constitutional Convention took up discussion of Article II, section 2, with particular emphasis on the pardon power. Edmund Randolph of Virginia (who did not sign the Constitution) moved to add “excepting the cases of treason” from the president’s pardon power. In his view, “The prerogative of pardon in these cases was too great a trust. The president may himself be guilty. The Traytors may be his own instruments.” Randolph’s motion to limit the extent of pardon power was precisely because the founders recognized the president might use such power on himself.
This led to a discussion of where the power of pardon should reside. It was widely held that the legislature was not the proper place, both because of concerns about the separation of powers and because legislators “are governed too much by the passions of the moment.” In this debate, James Madison noted the impropriety of allowing the president to pardon treason, yet he did not think the legislature should have that power. He thought the best plan would be to have the Senate act as council to presidential pardons (though this was never made into an official motion). Despite this debate, Randolph’s proposal was soundly rejected, 8-2, with Connecticut divided (Rhode Island and New York were not represented in the vote).
From this debate, it is clear that the founders recognized the president could legally pardon himself for federal crimes, including treason. However, unlike Locke, who notes that the misuse of prerogative power leads only to the appeal to heaven, James Wilson recognized there was one more appeal: to impeachment. Wilson, summarizing the whole debate, aptly noted: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.” And it is this limitation that Trump advisor Chris Christie recognizes. “If the president were to pardon himself, he’ll get impeached.”
The pardon power’s philosophical roots in Locke’s prerogative power make it clear that the possibility that it will be used broadly and arbitrarily has been recognized from the start. This, combined with the founders’ rejection of limiting either the unitary act of the president to pardon or the pardon’s application to treason so the president could not self-pardon, is indicative that the founders permitted the president to pardon himself. However, they did put two clear limitations upon the pardon power: federal jurisdiction and excluding cases of impeachment.
Thus, Americans who think that a president’s use of a pardon (either on his half-brother, his friends, a previous president, or even himself) is not for the public good can appeal not only to Heaven, but to the legislative branch for impeachment proceedings.