With a customary tweet, posted early Monday, President Trump reasserted his office’s supreme power to issue pardons under the Constitution, even one for himself if the occasion should arise: “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!”
The message poured fuel on a fire started by his attorney Rudy Giuliani in a Sunday morning interview on “This Week with George Stephanopoulos,” where he said the president’s power to pardon himself “would be an open question” and that “it would probably get answered by, gosh, that’s what the Constitution says.”
{mosads}Giuliani’s comments inflamed Trump’s critics already were upset by the president’s pardoning conservative film producer Dinesh D’Souza, who became the fifth person to receive clemency from Trump. His earlier pardon of Irve Lewis “Scooter” Libby, convicted of perjury, also drew ire; some characterized it as part of a scheme to reassure others who might be in special counsel Robert Mueller’s crosshairs and to interfere with the Russia investigation.
But a closer look at the pardon power shows nothing inappropriate has occurred. As Chief Justice Burger explained in the 1974 case of Schick v. Reed, the plain purpose of the pardon power is “to allow plenary authority in the president to ‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.”
Alexander Hamilton noted in “The Federalist Papers,” No. 74, the need to vest the pardon power in the office of the president, rather than in other branches or institutions. Giving one person such power, Hamilton observed, would make the sense of responsibility strongest, allow him to “mitigate the rigor of the law,” and insulate him from “considerations which were calculated to shelter a fit object of its vengeance.”
President Trump’s reasoning for issuing his pardons squares with the justifications explained in “Federalist No. 74” — that is, “mitigation of the rigor of the law,” and providing exceptions in “favor of unfortunate guilt.”
Trump has described former sheriff Joseph Arpaio, found guilty of criminal contempt and pardoned, as a person “who kept Arizona safe.” D’Souza, he said, was a victim of President Obama’s “witch hunt” and Libby had been “treated unfairly.”
D’Souza’s case illustrates one where “unfortunate guilt” applies. He breached campaign funding limits by asking an assistant and a woman with whom he was romantically involved to contribute to a U.S. Senate campaign, reimbursing them for their $20,000 total contributions with cash payments. This offense typically would attract a fine, but D’Souza had gained notoriety as an Obama-baiter. Facing a prosecutor intent on sending him to jail, D’Souza pled guilty. The judge sentenced him to five years of probation and a $30,000 fine, noting this was D’Souza’s “first offense in an otherwise apparently law-abiding life.”
Critics argue D’Souza’s pardon is inappropriate because he appears to lack remorse, referencing DOJ guidelines: “A petitioner should be genuinely desirous of forgiveness rather than vindication. … A petitioner’s attempt to minimize or rationalize culpability does not advance the case for pardon.” But D’Souza did express remorse during the sentencing proceedings and his later interviews alleging political targeting don’t undermine that.
Unfortunately for Trump’s opponents, the president can pardon someone for almost any reason. As the Supreme Court stated in 1866, in Ex parte Garland, the “Constitution provides 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.) In delivering the opinion, Justice Field stated that the power “conferred is unlimited. … It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.”
But is Trump correct that he can pardon himself? His critics note a 1974 memo by acting assistant attorney general Mary C. Lawton cites “the fundamental rule that no one may be a judge in his own case.” However, a decision to pardon is not analogous to being a “judge in his own case.” It does not have the attributes of an adversarial proceeding, and the president is not assessing guilt or innocence. It is aimed at achieving the exact opposite — “mitigating the rigor of the law.”
The president’s exercise of the power to pardon himself wouldn’t make him a judge in his own case. If he chooses to do so — should the need arise — the appropriate checks are provided by the legislative branch’s impeachment power and the people’s power at the voting booth.
Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.