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Continued links between Donald Trump and his former campaign manager (and now convicted felon) Paul Manafort have raised the possibility that Manafort may be holding out for a presidential pardon. But can a president pardon anyone for anything, and can they even pardon themselves? Looking to history, David Wise writes that the president’s power to pardon could be challenged by the courts if it were found to have violated the president’s duty to uphold the Constitution. A self-pardon, he adds, if annulled would then amount to an admission of guilt which could then open up the president to prosecution. 

The pardoning power that is described and defined in US Constitution is coming into public attention in a manner not seen since the immediate aftermath of Watergate and President Nixon’s resignation in 1974 and quite possibly since perhaps the question of how to deal with the leadership of the Confederacy after the conclusion of the US Civil War. The actions of the Special Counsel, Robert Mueller, increasingly seem to suggest that he is focusing on possible conspiracy and cover up; a suspicion bolstered by several leading actors allegedly reneging on plea agreements that subject the parties to great jeopardy for which there is no other logical rationale than the expectation of a pardon from the 45th President.

The President’s frequent tweets about potential pardons for these individuals raise questions about obstruction of justice.  The President’s activity on social media may improperly influence potential witnesses in an ongoing criminal investigation.  Furthermore, the President’s apparent limited understanding of the Constitution and lack of appreciation of the system of checks and balances make the risk of a Constitutional crisis a very real possibility. Although the President and some of his supporters seem to believe that pardoning power is an absolute personal prerogative that view is far from the truth.

In describing the system of government created by the founders, John Adams famously said that it was a “government of laws and not of men.” The Declaration of Independence based its case of twenty-seven specific complaints against the rule by one man — George III. The framers of the Constitution quite meticulously devised a system that ensured limits on the exercise of power though an elaborate, conscious system of “checks and balances” based on Enlightenment political theory.

Official White House Photo by Shealah Craighead

The Constitution nevertheless confers broad authority to the executive in granting pardons.  The Constitutional Convention rejected the proposal that presidential pardons be reviewable by Congress. The idea that presidential pardons should be reviewed by Congress has also been rejected by the Supreme Court in Ex Parte Garland (1866).  There is, however, no such restriction against judicial review of the breadth and scope of the pardoning power as established in early cases such as United States v, Wilson (1833) and Ex Parte Wells (1855). In another significant case, Ex Parte Grossman (1925), it was stated that this power was granted to the executive in “confidence that he will not abuse it.”

The pardoning power as described in the Constitution draws upon the experience of British legal history. One case, dealing with Thomas Osborne, Earl of Danby, is notable in that Parliament sought to impeach him for acts he undertook in colluding with Catholic France at the behest of the King Charles II, contrary to the will and interests of the nation.  Despite a pardon from the king, Danby served five years in the Tower of London and through the case the principle was established, a principle adopted by the Constitutional Convention, that pardons could not apply in the case of impeachment.

It is significant that the opinion in Ex Parte Grossman (mentioned above) was written by Chief Justice William Howard Taft who, himself, also served as President of the United States.  The presidential oath of office requires that the president act to “preserve, protect and defend” the Constitution and the grant of power to that office requires that the occupant must act to ensure that the laws are “faithfully executed.”

It follows, therefore, that a pardon that violates these clear Constitutional duties would be outside of the grant of presidential power and if not immediately void, would be voidable by the court. In Biddle v. Perovich (1927) Oliver Wendell Holmes stated that:

A presidential pardon in our days is not a private act of grace from an individual who happens to possess power.  It is part of the Constitutional scheme.

In his later writings on the presidency William Howard Taft would describe the idea of pardon used to further the private interests of the president as a “curious notion.”   Taft, the only Supreme Court justice to have held the presidential reins of power, wrote in his study of the presidency that a pardon must serve a “public purpose.”

Along these same lines of reasoning a presidential self-pardon would be entirely abhorrent to the rule of law.  The framers did not labor though the debates around a system of checks and balances to have it rendered meaningless by such an attempted abuse of the pardoning power in a way that would create a government by one man or woman, not a government of laws. It is also an established principle that no one should be judge in their own case.

Pardons that run counter to the rule of law and which obstruct the public interest raise a further interesting question. In Burdick v. The United Stated States (1915) the Supreme Court held that the acceptance of a pardon carried with it an admission of guilt.  If a recipient of such a pardon that is declared void because it was contrary to the public interest and outside of the duty of faithful execution then it follows that such an individual would be in the worst of all worlds having made an admission of guilt for a pardon that is later declared invalid as to punishment.

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Note:  This article gives the views of the author, and not the position of USAPP– American Politics and Policy, nor of the London School of Economics.

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About the author  

David W. Wise
David W. Wise is a frequent commentator on foreign, national security and public policy.  He holds a graduate degree from The Fletcher School of Law and Diplomacy at Tufts University.

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