I don’t believe a self-pardon’s gonna fly.
I don’t mean to say that President Donald Trump will not attempt it. He very well might.
I also don’t mean to say that it won’t be a big deal if and when he does attempt it. It will be a very big deal.
I mean, rather, that a self-pardon will not materially decrease the likelihood of his attempted prosecution by the Justice Department after he leaves office, and may even increase the chances of his indictment.
More important, it will probably not result in legal recognition that the pardon power extends to presidential self-forgiveness. To the contrary, if Trump does attempt a self-pardon in the face of a compelling federal criminal case against him, the result is likely to be Supreme Court rejection of the self-pardon’s legality.
The reason has little to do with doctrine. There is a very plausible textual case that the pardon power—which the Constitution extends to all “offences against the United States, except in Cases of Impeachment”—includes, by dint of not excluding, the issuance of a pardon to oneself. The legal scholar Paul Larkin Jr. of the Heritage Foundation recently offered strong reasons not to read into text restrictions that aren’t there—reasons rooted in the absolute nature of the pardon power, which is historically a creature of royal prerogative. There are also compelling reasons to doubt the constitutionality of the self-pardon, including those spelled out in this thoughtful analysis from Frank Bowman III of the University of Missouri School of Law, which focuses on the word grant as understood in the founding era.
My argument, however, is not doctrinal, but premised on the judicial politics involved in how a self-pardon would make its way to the courts.
To understand why a self-pardon gambit is preponderantly likely to fail, imagine the awkward circumstances in which it would realistically play out. Back in 1974, a woman named Mary Lawton articulated what has been the executive branch’s position on presidential self-pardons ever since. Lawton was then the acting director of the Justice Department’s Office of Legal Counsel, which is the guardian of presidential power, the office responsible for interpreting the law on behalf of the executive branch in a fashion that protects executive prerogatives. As such, the OLC tends to take expansive views of presidential authority within the confines of reasonable legal interpretation. Yet during the Watergate era, Lawton wrote that the pardon power does not permit a self-pardon: “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative,” she held for the department. To my knowledge, her opinion has not been withdrawn during the Trump administration, though it is certainly possible that the OLC has done subsequent work on the subject and kept it secret.
The president does have the authority to overrule the OLC, or to just ignore it, so the fact that the Justice Department has long held that he may not pardon himself isn’t a real impediment—except in one important optical sense: The courts, including the Supreme Court, would know that Trump was taking a position far more radical than the executive branch ever has on this matter. Indeed, they would know that he was taking it in contrast with a long-standing Justice Department position.
What’s more, the courts, and ultimately the justices, would know that the Justice Department had—within days of Trump’s self-pardon—reverted to its traditional view. President-elect Joe Biden takes office in only two weeks. He will surely adopt the view that the president may not pardon himself. So the Justice Department under him will undoubtedly argue, representing both the current president and the traditional position of the executive branch, against the self-pardon. Meanwhile, the former president will have taken a position that radically outflanks that of the traditional guardian of presidential power, in a self-serving view of the pardon power that held sway in the executive branch for all of two weeks.
That’s not a good look.
This brings me to a second awkwardness: the facts.
A self-pardon, after all, matters only if the Justice Department tries to investigate or prosecute Trump. Otherwise, it’s quite literally just a piece of paper. The department can contend that it is not a valid piece of paper. The new president can say so as well. And Trump can contend that it is valid. But without an attempted investigation or prosecution, Trump’s action will face no test. It will not set the precedent that the president can pardon himself, merely that he can try to do so—and we already know that.
So to imagine that the courts actually confront a self-pardon, rather than a self-pardon that is essentially a press release, you have to imagine that the Justice Department has either built or is building a serious case against Trump. You have to imagine that this case is, or at least could be, immensely compelling, because the Justice Department is not going to bring a marginal case against Trump. There are enough prudential factors that weigh against indicting a former president that only a very strong case would even warrant serious consideration.
The first point here is that given the possibility of such a case, the self-pardon would function almost as a taunt to the Justice Department. A pardon given to anyone else would abort an incipient investigation immediately; all the investigative subject would have to do is plead the pardon if indicted, and a court would dismiss the matter. But a self-pardon is different. It presents one of the great open questions of constitutional law, and if the Justice Department backed down from investigating or indicting because a subject had pardoned himself, it would effectively be acknowledging the former president’s power to issue a pardon over the current president’s insistence on the traditional executive-branch position.
The Justice Department—assuming it had or thought it could build a powerful case—would be rightly wary of allowing the self-pardon to function as a complete negation of the justice system in the hands of an investigative target. Its only means of vindicating its law-enforcement interests in the specific case, its ability to conduct investigations of the president at all, and its traditional understanding of the law would be to go forward with the investigation or prosecution. This actually could encourage the department to contemplate cases against Trump that are weaker than those it would have contemplated had no self-pardon been attempted.
There are two ways I can imagine the self-pardon being litigated. The first is that the former president resists a demand for information on the grounds that the investigation is improper as a result of the pardon. The second would be that Trump is actually indicted. Particularly in the latter case, the alleged facts would significantly condition the courts’ reaction to the self-pardon. The allegations in such an indictment are today both hypothetical and abstract. But in the litigation over the self-pardon, they would be neither. They would be real. They would be described at great length. And the revelation of such allegations, presumably backed up with evidence, could be horribly damaging.
Here’s how it would play out procedurally. The Justice Department would ask a grand jury for an indictment. In the face of the allegations, the former president would have to ask a district court to dismiss the indictment, pleading the pardon he had given himself. The lower court would decide the pardon question one way or another, as would the court of appeals that sits above it. And then the Supreme Court would take the case.
If, instead, the case were to emerge earlier in the process, following an effort by Trump to head off an investigation before indictment, the likely course of events would be slightly different. The former president would file some kind of motion to quash a subpoena, citing the pardon, and the Justice Department would resist that motion, arguing that the pardon is invalid and that it has good reasons to seek the material in question. This case might involve less factual richness, but it would still involve some: what the Justice Department is investigating, for example, and the factual predicate for its actions.
A self-pardon would create still another awkwardness. The Supreme Court has suggested that accepting a pardon implies admitting the pardoned crime. And while some debate exists about the extent to which this is true, it is certainly the case that granting a pardon strongly implies that the president believes there is some crime that requires forgiveness. Gerald Ford would not have needed to pardon Richard Nixon had the latter not committed crimes, just as no previous or subsequent president needed to pardon his predecessor. Being both the granter and the recipient of a pardon accentuates the guilt of the individual. Trump would effectively be announcing that he has engaged in acts that might expose him to criminal prosecution (thus alleging his own guilt); by then accepting the pardon, he would thus, to some degree, be admitting his own allegation. In pleading the pardon to the court, in other words, he would be boasting of his guilt.
So put yourself in the shoes of whomever you imagine the swing justices to be in facing such a case. They would confront a former president credibly accused of horrible things. He offers no defense, but rather asserts the claim that he can unilaterally nix an investigation or a prosecution by taking a position that defies the historic position of the branch he headed. Both the Department of Justice and the current president would be taking the opposite view. To grant him dismissal would allow every future president to negate every future criminal investigation of himself, and to give himself a get-out-of-jail-free card upon his exit from office.
I would be very surprised if there are five votes on the Supreme Court for this position.