OMNIA Q&A: Pardon Power

Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science, discusses presidential privilege.

Monday, June 25, 2018

Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!

— Donald J. Trump (@realDonaldTrump) June 4, 2018

With the above tweet, President Trump made the claim that, as the chief executive, he has the ability to legally pardon himself of a crime. His lawyers have made similar statements about the powers his position holds in relation to obstruction charges. We sat down with Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science, to discuss the legal ins-and-outs of these claims.

Could you provide some historical context for the introduction of the presidential pardon?

The presidential pardon is a descendant of the royal prerogative power to pardon under the English Constitution, the English monarchy. Pardon powers have been shared by all American executives, including governors, throughout the course of American Constitutional history. The existence of a pardon power is not controversial.

In the last few administrations, we've seen a pattern that is more extensive than at earlier points in US history. Particularly, late in their terms, when presidents don't face re-election pressures, they are using the pardon power for a variety of purposes, all of which they will defend as legitimate, but sometimes it seems that they're doing it to help their friends in one way or another. And Clinton was accused of this, Obama to some extent.

What's unusual about President Trump though, is of course, he is likely to seek re-election, he's already filed for re-election, he's not at the end of his term, and he is using the pardon power in order to cultivate various constituencies. The fact that he pardoned Jack Johnson was a symbolic reaching-out to African Americans who otherwise are very sharply opposed to a lot of his initiatives.

And he's talking about using the pardon power in other ways as well. Maybe to help friends, maybe to help protect against investigations, as some suggest. But also, as a means of building support for his re-election campaign. And that's something that's novel in American political practices.


Technically speaking, is it legal for President Trump to pardon himself?

The honest answer is that we don't know definitively whether the president can pardon himself or not. The constitution provides one clear path of sanctioning the president, that's impeachment by the House of Representatives and conviction by the Senate.

The question has been around for many decades about whether the courts can also punish the president for violations of the law. Those questions were most explored during the Watergate controversy where the Supreme Court did indicate, in U.S. vs Nixon, that executive privilege did not permit the president to keep secret information that might aid a criminal investigation but at the same time, Nixon was, at most, labeled an unindicted co-conspirator in the ensuing prosecutions because at that point, the Justice Department wasn't ready to resolve the question of whether the President could be convicted for crimes.

The arguments go both ways. You can say on the one hand that the Constitution provides the modes of sanction, that's impeachment; and that under the separation of powers, the president is in charge of prosecutorial functions and therefore can choose to pardon himself or herself if the president so chooses. That's the argument in favor of the pardon power.

The argument the other way is that the president takes an oath to faithfully execute the laws. If the president is in fact violating the laws, there ought to be a sanction beyond that, that no person should be above the law, and that the courts should have the power to punish criminal behavior.

Those two arguments each have some weight, and there has never been any definitive consideration or ruling upon them by the court system, or anyone else.


President Trump's lawyers have suggested that as chief executive, he isn't capable of obstructing justice. Is this true?


If you understand the process of securing justice as something that is a matter of executive discretion, and the conduct of prosecutions, then the president as the chief executive would have unbridled discretion and would not be capable of obstructing justice.

If you understand the ban on obstructing justice as an indication that everyone must act in ways that make sure that the objective meaning of criminal laws is effectively enforced, then you can readily imagine that a president that is preventing the effective enforcement of the objective meaning of criminal laws, is obstructing justice.

I suspect that the court system will lean toward the latter view, that they will believe the courts ought to have oversight over what it means to enforce the criminal law. And that if the president is taking actions that they think result in acquiescence in criminal violations, or refusal to prosecute criminal violations, they can well see that as obstruction of justice. But we haven't gotten to that point yet, and again, it's something on which there is no existing definitive judicial ruling.


Can you provide context as to why the Constitution didn't address a president's ability to self-pardon?


At the time of the adoption of the Constitution, the judicial power was the least well-defined of the three branches of the federal government. It was the least discussed at the Constitutional Convention, and the expectation was that most of the power would lie especially with the people's representatives in the Congress and secondarily, in the executive, and the judiciary would be the least dangerous branch.

Over the course of American Constitutional development, and particularly with the rise of polarization and gridlock in the latter part of the 20th century, we've seen an increasingly prominent judicial role in all of American governance. To the point that some see as tending toward judicial supremacy. And it is true that two key figures on the current court, Justice Anthony Kennedy, who is often the swing vote, and Trump's own appointee, Neil Gorsuch, they are strong proponents of a powerful judiciary that makes sure that all other actors, including the president as we've already seen, stay within the boundaries of what they see as the rule of law.

So we have seen a growth of judicial power over the course of American Constitutional development. And that growth now means that many more people, including Supreme Court justices, accept that the Supreme Court has to be activist in policing the boundaries of the separation of power, and the limits on the power of other government officials.


Was the appointment of the special counsel Mueller appropriate under law?

The appointment of the special council is a continuation of a practice that we've come to adopt since the Watergate scandal. So, the constitutionality of this practice, and the desirability of this practice, is well-established. Special prosecutors have a potential for abuse, and many people looking in retrospect think that Ken Starr went way too far in his efforts to investigate Clinton, ending up focusing on perjury, in a matter, the Lewinsky affair, that was no part of the original mandate of Starr as special prosecutor.

My own judgment is that so far, Mueller has done a good job of keeping the investigation focused on the question of possible interference and abuses in the last election. And when he's found evidence of other sorts of criminal behavior, he's sent that on to others to prosecute, as in New York. 

President Trump and his administration believe he's going too far, but of course they don't believe he should be conducting this investigation in the first place.


Have past presidents ever discussed pardoning themselves?


Neither Bill Clinton nor Andrew Johnson ever suggested that they would pardon themselves when they were faced with impeachment. But of course, they were not then facing a criminal prosecution. They were facing an impeachment proceeding. And there's no question that the Constitution allows for that form of sanctioning the president.

Now, Richard Nixon did recognize that after the courts made him turn over the secret tapes in his office, that he might face a criminal prosecution. It also immediately became clear to him that he was going to be impeached and probably convicted. So at that point he resigned the presidency. Again, there was no discussion of a pardon.

But in all cases, that's because the impeachment process, which cannot constitutionally be resisted, was the route that those presidents faced.