In response to:
What Are Impeachable Offenses? from the September 28, 2017 issue
To the Editors:
“What Are Impeachable Offenses?” by Noah Feldman and Jacob Weisberg [NYR, September 28] presents a scholarly review of Article II, Section 4 of the Constitution of the United States, which provides: “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The text and history have provided enough problems for the brightest minds to fully occupy themselves, as the essay confirms. But this does not justify adding snap judgments by the authors on other “offenses” such as “a self-pardon, which would be ineffectual because no judge would regard it as valid.”
I believe the authors are wrong.
Article II, Section 2, Clause 1 of the Constitution gives the president the power to pardon for “Offenses against the United States, except in Cases of Impeachment.” Impeachment is the only exception because the Constitution requires that impeachment requires removal from office.
The Constitution does not prohibit a president not impeached from pardoning himself.
The closest historical event in American history is the only time a president was pardoned. That was when President Richard Nixon was pardoned by his successor, Gerald Ford. Nixon had appointed Ford as vice-president under the Twenty-fifth Amendment when Vice President Spiro Agnew resigned to avoid indictment for crimes he had committed.
Thereafter, Nixon resigned to avoid impeachment and he was promptly pardoned by Ford, who had succeeded Nixon as president. There was considerable opinion at the time that it was all agreed upon beforehand. That is, Nixon did indirectly and in two moves what he feared to do directly.
This is the closest precedent for the president to pardon himself, and it is likely to be cited by Trump for pardoning himself. Or, following more closely the Nixon-Ford formula, Trump could agree with Vice President Mike Pence that Trump would resign as president on condition that when Pence became president, he would pardon the outgoing Trump. Pence would be delighted, and so would many Republican legislators who would be happy to remove the Trump dark shadow on constitutional government.
Before leaving office, Trump would also likely pardon his cronies, including his family.
To avoid these possibilities, the Constitution should be amended to prevent the president from pardoning himself directly, or indirectly through the vice-president becoming president. It should also prohibit pardoning the president’s family, and all who served in office during his presidency.
Professor of Law Emeritus
Temple Law School
Noah Feldman and Jacob Weisberg reply:
Professor Caine is correct that the text of the Constitution does not expressly exclude self-pardon. But happily, no amendment is necessary to make it clear that the president cannot pardon himself. History, language, and more important, the underlying logic of the rule of law all support the conclusion that the notion of self-pardon cannot be constitutionally defended.
To begin with, the historical pardon power that predated the Constitution was always directed at a person other than the pardoner. The king of England could not be sued or criminally charged in his own courts without his consent; consequently, his prerogative to pardon did not apply to himself. The executive created by the US Constitution almost certainly had to be impeached and removed before being charged criminally. And as James Iredell, later an important justice of the Supreme Court, explained at the North Carolina ratifying convention, the president could not pardon an impeachment—which meant he could not keep himself in office, and by implication could not pardon himself.
As a matter of linguistic sense, “pardon” also does not plausibly extend to an act performed by the president on himself. To pardon is to forgive. One forgives the act of another. One cannot forgive oneself, except by a metaphorical extension of the term that has no place in legal discourse.
Finally, and most fundamentally, the notion of self-pardon would undercut the basic republican principle that every person, including the president, is subordinate to the law. A president who could self-pardon would be a king, or rather a Roman emperor. As the first line of Justinian’s Code has it, “princeps legibus solutus est”: the sovereign is not bound by the law. That is very close to being the antithesis of republican government.
The Constitution cannot and must not be interpreted to include the seeds of its own destruction by allowing a self-pardoning president to violate the law and then free himself of its consequences. We are confident that the Constitution forbids self-pardon; and as one of us has written (in Bloomberg View, July 21, 2017), we are confident as a predictive matter that the courts would not recognize a putative self-pardon as valid.
In contrast, when Gerald Ford pardoned Richard Nixon, the criticism was loud and legitimate; but no one seriously doubted the pardon was legally valid. If that pardon was the result of an illicit deal, it violated the spirit of republicanism but not its letter. If, however, that pardon was granted in the hope of righting the ship of state by avoiding a trial the public could not tolerate, it was an act of statesmanship that may be defended on the ground of its historical effects.