A presidential self-pardon would make the Constitution meaningless

A presidential self-pardon would make the Constitution meaningless
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Recently, President TrumpDonald TrumpPence: Supreme Court has chance to right 'historic wrong' with abortion ruling Prosecutor says during trial that actor Jussie Smollett staged 'fake hate crime' Overnight Defense & National Security — US, Iran return to negotiating table MORE claimed that he had the “absolute right” to pardon himself. His lawyer Rudy Giuliani made this claim even more ludicrous. He said Trump could commit murder, pardon himself, and go on as if nothing ever happened.

They’re wrong. 

The Constitution isn’t a video game, and Trump can’t break the law, buy himself “Magic Self-Pardoning Powers” from some pixilated wizard, and start all over again. 


Bizarrely, Team Trump seems to have some support. As soon as he made his claim, legal theorists swarmed into action. CNBC brought in a dozen experts to debate the issue. John Yoo and other defenders of broad executive power coyly balanced their opinions. He could pardon himself, they said, but he shouldn't.


The Constitution is too important to leave solely to a politician trying to save his own skin, to the lawyers he’s hired to get him off the hook, or to legal theorists who think the Constitution is just Games With Words.

Some Constitutional issues are complicated. This one is not. The Constitution does not give the president the right to self-pardon and it never has.

As always, start with the text. What does the Constitution say?

The clause of the Constitution defining the power to Pardon states, "The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”

In no place does it explicitly state: “Presidents may not self-pardon themselves.” 

This is normal. The Constitution is often artfully vague on the specifics. It’s a Constitution, not a legal code. In particular, the Founders tended to leave off notions that they thought too ridiculous to mention. The idea that the president could self-pardon falls into this category.  

Why is it ridiculous? It’s ridiculous because the claim to self-pardon is a claim that any president can violate the Constitutional law of the land and get away with it. 

Yet, the Constitution says the opposite. One of the president’s major duties is to “take Care that the Laws be faithfully executed.”

This clause echoes the president’s oath of office, “I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

The word “faithfully” appears in both sections. The Constitution does not define this term. Nor does it define the term “take care.” Nor does it have to.

The meanings of these words are plain and simple. Trump took an oath to care for the Constitutional rule of law itself. He is required to care about the substance of the laws, not what he can get away with. 

The Constitution also reminds us of the explicit limits on the president’s pardon power stating, “

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.” 

Thus, even if Trump claims the power to self-pardon, he cannot pardon himself out of impeachment. 

The Constitution defines impeachment elsewhere, as a power and obligation of the legislature.  

Removal by impeachment requires a two-step process. The House of Representatives, sitting as a grand jury must decide that they have reason to believe the president has committed “Treason, Bribery, or other high Crimes and Misdemeanors” against the United States. Then the Senate sits as a court.

And where does the Constitution define the term “High Crimes and Misdemeanors?” It doesn’t. As a nation we have had blessedly little reason to consider the question. It doesn’t mean the House has the power to impeach the president for breaking any law at any time. Congress isn’t going to impeach the president for spitting on the sidewalk. But nor has it meant “Whatever the House and Senate can find the votes for.” 

So what does impeachment mean? Can we at least nail this down? Sure: The Constitution gives Congress the power and obligation to impeach, convict, and remove when the president has violated his or her oath of office in such a way that the nation cannot afford to wait for another election. There is no reason to make it any more complicated than that. 

The Senate has never convicted and removed a president. The threat of impeachment and conviction was enough to cause President Nixon to resign in 1974. 

Here is the key point: Nothing in the Constitution; nothing in the Federalist Papers or the Anti-Federalist papers — nothing — absolutely nothing in our history says: “The Constitution applies to all Americans except for the president.”  

Indeed, it says opposite, loud and clear and often. A power to self- pardon would put the president above the Constitution. Trump is dead wrong about that. Lawyers who game their way to the self-pardon power? They’re dead wrong too. 

You don’t need a law degree to figure that out. You just need to find a copy of the Constitution and read it. 

Andrew B. Arnold, Ph.D., in History from the University of North Carolina at Chapel Hill, is chairman of the History Department at Kutztown University of Pennsylvania, and author of A Pocket Guide to the U.S. Constitution: What Every American Needs to Know.