Tuesday, November 22, 2016

Pardon Me, Mr. President: The Presidential Pardon Power

Presidential Pardons Wipe The Slate Clean

President Ford Announcing Nixon Pardon
Questions have been swirling around the potential for Hillary Clinton and others to be pardoned in light of Emailgate and the revelation of an FBI investigation into the Clinton Foundation. If Hillary had been elected, could she have pardoned herself? Can the President pardon someone only after a conviction, or can he do so even prior to the person being charged? 

The power of the President to grant pardons is extremely broad. Article II, Section 2, of the Constitution provides as follows: "The President shall . . . have Power to grant . . . Pardons for Offences against the United States, except in Cases of Impeachment." The key elements are that (i) the offense must be against the United States (no pardons for state or local law offenses) and (ii) an actual offense must have occurred, as opposed to an advance pardon for future potential offenses. Neither the courts nor Congress may review pardons, and the President need not even provide a reason when he grants one.

The President's pardon power is derived from the traditional power of the English Crown. In his Commentaries on the Laws of England, Sir William Blackstone describes what he deems the "most amiable prerogative of the crown":
THIS is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment. 
At the Constitutional Convention there was a proposal to make pardons subject to the consent of the Senate, but that proposal was rejected. In Federalist Paper 74, Alexander Hamilton laid out the rationale for reposing this power solely with the President:
Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. . . . As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. . . . On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men. 
Although the pardon power is extremely broad, I do not see it extending to Presidents pardoning themselves. While the text of the Constitution does not expressly bar such a "self-pardon," and some have argued to the contrary (according to reports, Nixon considered pardoning himself), I believe that the better argument is that self-pardons are barred. Fundamentally, it is hard to believe that the Framers, with their checks and balances approach and a number of restrictions on self-dealing, intended that the President could pardon himself. It flies in the face of the logic and structure of the Constitution and the separation of powers. (By the way, English legal history up to the Founding era provides no help, because the Crown would not have needed to consider self-pardons based on the legal maxim "rex non potest peccare," which translates to "the king can do no wrong.") 

So, just for the sake of argument, let us assume that since the text is silent this means self-pardons are allowed. Do we then extend such reasoning -- that the President can use his extensive Executive powers to benefit himself -- to a whole host of other powers where a restriction is not expressly spelled out? For example, under the Appointments Clause, could the President appoint himself a Supreme Court Justice (or a judge of any federal court) and still be President? While not barred by the text, the answer logically must be of course not, for there then would be no separation of powers between the Executive and the Judiciary. Similarly, the President earns only what is set as his compensation, and cannot receive any other salary or compensation from the United States or any of the States. Would those who think a self-pardon is acceptable view this provision -- which states that the amount cannot be increased or decreased during the President's term but says nothing about who sets it or how it is to be paid -- as allowing the President to set his own salary, or pay himself directly from the Treasury without Congressional appropriation? I do not think so. Congress has to set the salary and appropriate the money for it pursuant to Article I's requirement that, "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . .." (Indeed, in the First Session of Congress they did just that, with an annual salary of $25,000 payable quarterly out of the Treasury.) Finally, the entire notion of a self-pardon flies in the face of the legal maxim "nemo judex in sua causa," which translates to "no man shall be a judge in his own cause." 

The federal pardon power may be exercised prior to indictment or conviction. The only requirement is that there have been an "offence" against the United States. In this regard the federal pardon power is much broader, for example, than the pardon power provided in the New York State Constitution of 1777, which predated the U.S. Constitution by 10 years. It provided that "the governor shall . . . have power . . . at his discretion, to grant reprieves and pardons to persons convicted of crimes. . .." (This conviction requirement is still applicable in New York.) Thus, for example, if the Clintons violated any New York laws in connection with the Clinton Foundation, they would have to be convicted first in order for the New York Governor to pardon them. But if they violated federal laws, they could be pardoned now.

Our history is filled with pardons that were seen as controversial. Perhaps the most controversial pardon in U.S. history is President Gerald Ford's grant to former President Richard Nixon on September 8, 1974, of a "full, free, and absolute pardon . . . for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974." At that time, Nixon had not been charged with or convicted of a crime, and the pardon ended any chance of an indictment. Talk of a deal was widespread, and President Ford actually testified before Congress about his decision. Also controversial were President George H.W. Bush's pardons of Caspar Weinberger and others involved in Iran-Contra, along with a number of President Bill Clinton's pardons.

So will Hillary Clinton and perhaps others be pardoned for Emailgate and/or Clinton Foundation matters? Maybe. There is good precedent, and some of it relates to the Clintons. CIA Director John Deutch, who had resigned from his position after it was disclosed that he stored highly classified information on his home computer, had agreed to plead guilty to a misdemeanor and pay a $5,000 fine. Fortunately for him, President Clinton pardoned him on his last day in office. In the end, pardons concerning Emailgate may actually be helpful to the new President by removing this lingering issue and allowing him and Congress to focus on the future. 

We shall know what happens prior to noon on January 20, 2017.  


  1. Was wondering where your Blackstone Commentaries would be dusted off and utilized. :-) As to the whether self-pardons are barred (and which you pointed out are not by the Constitution) we will have to see if the need arises and whether the President-Elect will choose to use it. I guess we will have to wait and see what happens even after January 20, 2017. . .

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