Monday, June 4, 2018

Pardon Me, Mr. President -- The Sequel

President Trump's Assertion of Self-Pardon Has No Basis In Law

This morning the President tweeted that he has the "absolute right to PARDON" himself, citing "numerous legal scholars."

I don't think so. In November 2016 I posted on the pardon power. Here is the relevant portion of that post:
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." 
Here is a link to the original post:  Pardon Me, Mr. President: The Presidential Pardon Power