It will have taken 247 years to come up, but next year’s President of the United States may present a unique political problem: There’s a chance that the person elected president will have been convicted by then of one of the ninety-one crimes with which they have been charged. But the Constitution, in enumerating the powers of the presidency, states that “The President shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment” (Article II, Section 2, Clause 1). Which raises the question: does the president have the power to pardon himself?
Textualism is a version of what philosophers call “positivism.” Positivists believe that the law is just a set of rules and that judges should keep as close to the letter of those rules as possible. Only where the law “runs out” – where there’s a need for a legal finding, but not enough textual evidence to support any particular one – should we settle for the subjective opinion of the judge.
The main textualist argument supporting the president pardoning himself is that nothing says he can’t. Absent any direct textual evidence against the self-pardon, there’s no basis for preventing it. But even if we stick to the text and confine ourselves to the strict meaning of the word “pardon,” can a person really pardon themself? Normally, you ask, or even beg, another for pardon. Just as you can’t “bequeath” to yourself, or “endow” yourself, or “bestow” something upon yourself, in ordinary English, “pardoning” is not something you can do to yourself.
This interpretation, then, seems to frustrate linguistic convention, but maybe there’s an argument to be made regarding original intention. Perhaps, we need to go beyond the text and ask about the history and intended purpose of the presidential pardon. This is “originalism.”
Here’s some history. The Founders were concerned with limiting the president’s power and ensuring those powers couldn’t be abused in self-serving ways. There wasn’t an explicit debate about self-pardons during the Constitutional Convention, but there was a debate about whether there should be an explicit treason exemption. Edmund Randolph said pardon authority in such cases “was too great a trust” since the president “may himself be guilty,” and George Mason said that the president might “frequently pardon crimes advised by himself.” Alexander Hamilton responded that the exception for impeachment was already sufficient to prevent the abuse of the power by self-pardon, because any crime committed by the president would result in an impeachment, which a self-pardon could not overturn. In other words, no one favored self-pardoning, but Hamilton thought the impeachment clause would be enough to prevent it.
Part of our legal trouble, however, is that we simply have too much history. You can always find some historical evidence to support whatever position you like. James Madison alone left us over six hundred pages of notes from the Constitutional Convention. More recently, originalist Samuel Alito cited an English common-law text from the twelfth century to support his opinion in Dobbs v Jackson. Imagine the number of pages of primary texts available on any legal question since the twelfth century.
This originalist approach is inherently conservative since it promotes the idea that we should interpret the Constitution exactly the way people would have 250 years ago. (In the Colonies, at that time, adultery was punished by a fine and a public whipping, while sodomy was punished by public execution.) Originalists would argue we are still bound by that original understanding, and, maybe, that there are more specific principles of historical interpretation to use.
But here’s another theory. One could argue that, while we must start from the text and acknowledge that the historical context is not irrelevant, our aim is to build a unified theory of “pardon power.” What is a pardon’s purpose? How does a pardon achieve its goal? Pardon power was not created to allow presidents to evade responsibility for wrong-doing, and so self-pardons that serve no other purpose should not be permitted.
What if the president is the victim of a weaponized justice system? Even so, another feature of law that should influence our theory of pardon power is that no one should be the judge of their own case. We shouldn’t allow the president to have the last word on whether or not they have committed, or should be excused from, crimes for which they have been duly convicted.
This is called the liberal, or constructive, theory of law; though it’s closer to natural law theory than to “liberalism” in the way that it is used on Fox or CNN. The idea is that the law and the Constitution rely on notions like equality, liberty, and rights, and that there is no letter of the law, nor historical substitute, for spelling out their precise content.
Consider the Ninth Amendment. Madison, who wrote the Constitution, initially opposed adding the Bill of Rights to the Constitution, and only agreed if this addition was included: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Liberals would argue that since unenumerated rights are, you know, not enumerated, there is no straightforward way to interpret what those rights might be without developing an accompanying theory of what rights people should have and what entitlements they deserve. Just for context, the unenumerated right most debated these days is the right for people to make private family and sexual choices without government interference. Is this an essential part of liberty properly understood, or are liberals using the Constitution to impose their own contentious view on others? (Ironically, the view liberals are trying to impose is the view that others should not impose their particular views on others.)
Originalists and textualists, however, claim that the liberal approach is too indeterminate and that we can’t fairly interpret the Constitution by simply using our private understandings of pardons and their purpose. But it looks, at least based on this brief survey, as if presidential self-pardons are inconsistent with most theories of law – except perhaps the strictest kind of textualism. Still, let’s hope we don’t have to find out what the courts think of the constitutionality of a presidential self-pardon.