Donald Trump's unpardonable endgame: Does the president have unlimited power to pardon anyone?

Will Trump try to get out of this mess by pardoning himself? That's what the founding fathers wanted to avoid

Published August 23, 2018 8:00AM (EDT)

George Washington; Andrew Johnson; Donald Trump (Getty/Salon)
George Washington; Andrew Johnson; Donald Trump (Getty/Salon)

Let’s not forget that a couple of months back, many Trump-initiated crises ago, talking-head legal whizzes and constitutional scholars took to the airwaves to ponder the seemingly absurd prospect of a sitting president issuing official pardons to himself (first and foremost) along with his wayward children and members of his criminal gang. With Michael Cohen's plea bargain and Paul Manafort's convictions on legislators’ minds, and Michael Flynn’s sentencing pending, we think it’s time, once again, to revisit the unpardonable endgame.

For those who believe that the question of Trump’s pardon policy and hypothetical self-pardon were sufficiently debated by legal experts back in June, we say: Not so fast. Our nation’s history matters, and the legal experts have muddled it. The Constitution has to be understood in its correct historical context, of course; but the experts (or, at least, the loudest voices) have so far failed to heed John Adams, the first to codify the greatest of Revolutionary-era truisms, that ours is a “government of laws and not of men.”

Presidential power is an issue that never goes away, and for good reason: The founders and their immediate successors grappled with it on several levels. They knew demagoguery, despotism and media manipulation in an earlier but still recognizable frame. In ethical terms, not a lot has changed over 200 years. Because celebrity and image-making drove political campaigns back then too, rational actors did their utmost to put in place the checks and balances we profess to honor still.

John Adams was a lousy politician, owing to his lack of social smoothness or affability, but he was a man, nonetheless, of unwavering principles. When he enshrined in the 1780 Massachusetts State Constitution the quotable notion that ours must remain a “government of laws and not of men,” he wrote that any and every official could be investigated and removed from his position for violating the law.  

In almost the same breath as he preemptively declared the right to pardon himself, President Trump claimed that the ongoing investigation into Russian meddling by special counsel Robert Mueller was “unconstitutional.” As is typical with Trump, in neither case did he cite the source(s) of his supposedly certain knowledge of the nation’s governing compact. Trump’s lawyers doubled down, literally stating that a chief executive is above the law. They would expand the president’s authority at the expense of the rule of law. They have been trying to justify an argument that has no precedent. In truth, the president has about as much right to pardon himself as he does to elect himself.

Nothing embodies demagoguery and despotism so much as the idea that a president can be above the law. Anyone trained in the law who has not sold his soul to the make-believe world of the Trump White House would understand, as the founders did, that the act of pardon is a gift of mercy; it is derivative of the notion of divine grace. It is the decision of a higher authority bestowing forgiveness on a vulnerable subject who is worthy of this special grant. (Joe Arpaio and Scooter Libby hardly make the best poster boys!) The pardon is not an unlimited presidential power, and it must be freely given without expectation of a quid pro quo. In short, a president must not in any way be seen as profiting politically or financially from a pardon. It is an inherently selfless act, which is precisely why a president cannot pardon himself.

This guiding precedent, established by President George Washington, was set when he granted pardons to the so-called Whiskey rebels, charged with treason in 1794 after fomenting a tax rebellion in Pennsylvania. While those found guilty faced execution, Washington believed that an extension of mercy to the rebels demonstrated “moderation and tenderness which the national justice, dignity, and safety permit.” A well-defined moral principle stood behind the pardon: The president acts not for himself, nor for those convicted but for the greater common good. The pardoning power vested in the executive is not a personal whim but an official act of impartiality and high-mindedness. Trump’s impulse is anything but.

At the Constitutional Convention, delegates were well aware that future presidents would be investigated for unseemly behavior and that the pardoning power might be so abused. In the First U.S. Congress, Sen. William Grayson of Virginia declared: “The President is not above the Law.” It was “an absurdity to admit this Idea into our Government. Not improbable that the President may be sued.” Grayson directly addressed Trump’s ostensible, if grotesque, campaign joke about shooting someone on Fifth Avenue with impunity. Grayson insisted that a president who got away with murder destroyed checks and balances, perverting the governing compact into an “unnatural monstrous Production.” To Virginia’s first U.S. senator, retaining royal prerogatives in the American presidency disabled the “three legged Stool” of coequal branches, to wit, “if one leg is longer than another, the Stool will not stand.”

The founders placed a further limitation on the president’s pardoning power: It cannot be exercised in cases related to an impeachment (Article II, Section 2). The leading constitutional commentator of the early 19th century, Justice Joseph Story, regarded the impeachment exception as a necessary “check” to prohibit the president from using the pardon to consolidate his own power or screen his “favorites” or “dependents” from deserved punishment. Abuse of the pardoning power had been exploited by English kings, which was exactly why the founders deliberately reduced its reach. To state the analogy in unmistakable terms, Story insisted that the president “should not have the power of preventing a thorough investigation” of any public official for an impeachable offense. This stricture obviously applies to the president himself, and thus the argument that the Constitution does not explicitly prohibit self-pardons is a red herring. Every legal scholar knows that we have both the spirit and letter of the law. The impeachment exception clearly shows that the president cannot shield anyone in his administration who engages in criminal activity or corruption, and that includes the president himself.

Among today’s legal experts who have weighed in on Trump’s constitutional dilemma, there are those who, for purely partisan reasons, insist that the self-pardon question remains unsettled. Many rely on an 1866 decision known as Ex parte Garland, in which the Supreme Court momentarily endorsed an expansive scope of the presidential pardon power. This is grasping at straws and ignoring context, stretching possibilities to a point of near-absurdity. The Garland decision came after President Andrew Johnson had extended blanket pardons to Confederate officeholders and military officers. On the strength of his presidential pardon, former Confederate senator Augustus H. Garland sued for the right to practice law. He won. But the decision spoke to his membership at the bar, not to the broad power of presidential pardon.

Andrew Johnson went out of his way to subvert the execution of the laws and was, of course, impeached. His use of the pardon power was curbed upon ratification of the 14th Amendment in 1868, which not only insured equal protection under the law but also disenfranchised certain classes of former Confederates. Thus, despite the selective reading of Ex parte Garland by those who would condone the Trump regime, the presidential pardon authority was indeed checked by Congress in the Reconstruction era.

Looking for loopholes, former Deputy Assistant Attorney General John Yoo, the so-called torture advocate in the second Bush administration, addressed the pardon issue in The New York Times. He argued for expansion of presidential powers rather than preserving checks on that power. David Rivkin and Lee A. Casey, who served as officials in the Reagan-Bush administrations, went even further in The Wall Street Journal. (That article is here, although behind a paywall.) They called for Trump to issue a blanket pardon to any who were involved in the Russia scandal, a pardon that they claim would cover the president as well. We must be wary – just listening to Rudy Giuliani spin from one day to the next, absurd constructions of law will invariably have to be addressed at length before any sort of justice results.

In that vein, let us add one more bit of recent evidence dictating against self-pardon. It comes from a memo written by Acting Assistant Attorney General Mary C. Lawton during the Nixon impeachment proceedings. A few days before the president resigned, she scrutinized Article II, Section 2 of the Constitution and concluded that a president cannot pardon himself because that would violate the “fundamental rule that no one may be judge in his own case.” Some have argued that because this rule comes from British common law, and not explicitly from the U.S. Constitution, it carries less weight.

But this, too, is a bogus argument. The Constitution’s pardon rule is derived from British legal practice. Indeed, our entire legal system is based on common law principles. In United States v. Wilson (1833), Chief Justice John Marshall acknowledged that the pardon power comes from American jurists’ understanding of English law books and common law rules. In Federalist No. 10, James Madison explicitly stated: “No man is allowed to be judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The founders did not live in a vacuum. Our Constitution is based on the foundational assumption of a fair proceeding in which the parties involved are separate: The judge acts as arbiter of the law; the jury, composed of average people, judges the facts; the prosecution is the arm of the state insuring public order and welfare; the defense counsel acts to protect the rights of the accused.

There is no constitutional ambiguity here. There is only the danger of the president’s party cowering before a depraved, vindictive, despotic and demagogic truth-evader. Trump’s repeated attacks on the FBI, his constant references to Mueller’s careful investigation as a “witch hunt,” reek of despotism and a crass demagoguery. Presenting himself as the victim of a conspiracy is but a prelude to declaring his right to subvert the law.

READ MORE: Is a senior Air Force general using his power to spread far-right Christian nationalism?

As absurd as the statement sounds to all reasonable people, Trump apparently believes what he has said publicly, that “I alone can fix it,” that he alone can judge – and judge himself. Any demagogue must convince himself that ultimate truth resides in his own words. It is Trump against the world, and not just in the sense of his self-declared trade war against America’s firmest allies.

The self-pardon question is but another example of an existential struggle to define the contours of political morality in our century. Trump is, to put it starkly, waging a war against the United States. By elevating his personality to the height of authority, he diminishes the value of institutional checks and balances, without which there can be no constitutional republic. John Adams spent his career in and out of government cautioning, for those who would listen, about the fragility of human reason. In 1775, he and his colleagues in the Continental Congress broadcast the message that the Revolution was needed, above all, to amend conditions where disproportionate power produced ill effects.  

Nothing has changed in that respect. Representative democracy exists to prevent extremism. Understanding bizarre tendencies in human nature, whereby some crave power and others revere those in power, Adams warned against inviting the condition under which masses of committed people surrendered their capacity for critical thinking to an unwavering party orthodoxy. People loved pomp and parades – it was this sort of thing that allowed naïve voters to succumb to demagogic voices and trumpeted egos. Despite his grossly overstated reputation as an apologist for monarchy and aristocracy, Adams definitively believed that the wealthy needed, more than any other element in society, to be controlled. For them, the temptations for abuse of power and privilege were greatest.

The Constitutional Convention did not deal with every contingency. Just as there are no literacy tests for presidential candidates, there are no tests for moral character either. When not driven by fear or simple hatred, America’s elections have always been more a popularity contest than a decision between competing problem-solving ideas. That’s why the Constitution is at its best when it sets limits.

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By Andrew Burstein

Andrew Burstein and Nancy Isenberg are historians at Louisiana State University and co-authors of the forthcoming book "The Problem of Democracy: The Presidents Adams Confront the Cult of Personality." Follow them on Twitter @andyandnancy.

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By Nancy Isenberg

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