Can Trump pardon himself? Constitution leaves it open

Can Trump pardon himself? Constitution leaves it open
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Amid reports that President TrumpDonald John TrumpTrump nominates ambassador to Turkey Trump heads to Mar-a-Lago after signing bill to avert shutdown CNN, MSNBC to air ad turned down by Fox over Nazi imagery MORE is preparing to grant a number of pardons is speculation about his authority to grant a self pardon. Although this is an issue that has not been addressed in our courts, many scholars and historians believe such an attempted exercise of power would be inconsistent with the traditions of U.S. law and our founding principles.

Clemency is an act of grace by the sovereign. The federal pardon power lies exclusively with the president, and Section II of the Constitution expressly limits that power only in cases of impeachment and to violations of federal law. Importantly, the Constitution does not speak to self pardons. Since the Constitution expressly limits the pardon power in certain limited ways but does not expressly forbid self pardons, the courts may well conclude under recognized canons of construction that a president has the power to grant a self pardon.

The Constitution simply allows no other reasonable conclusion. There is no bar to self pardons. Those who share the opposing view argue that a self pardon places the president above the law. Finding no express support in the words of the Constitution, critics retreat to the old adage that “no man should be the judge in his own case.”

However, if the law does not prohibit the practice, then arguably the president does not place himself above the law with a self pardon, just as no one else is placed above the law when they receive a pardon. In both instances, the recipient of the pardon escapes the usual consequences of criminal wrongdoing that is imposed by law. Furthermore, when granting a pardon, the president is not acting as a judge to adjudicate guilt or innocence. A judge has no authority to grant a pardon. The pardon power is an executive power, one expressly reserved to the chief executive.

Section III of the Constitution requires the president to take care that the laws be faithfully executed. Opponents of self pardons also contend that Section III of the Constitution establishes a trust with the American people that is violated if the president grants a self pardon. But, if in granting a self pardon the president violates the trust of the American people then arguably the president violates that trust every time a pardon is granted to anyone who has failed to faithfully follow the law. So long as the president does not grant a pardon for a non-federal offense or in cases of impeachment, the president is arguably faithfully executing the law.

Our Founding Fathers fought a revolutionary war to escape the tyranny of a British king. They established a government dispersing power between three coequal branches. The suggestion that in drafting a Constitution these men intended to vest power in the chief executive to pardon himself seems counterintuitive. On the other hand, having just experienced the unfettered discretion of a king, our Founding Fathers must have been sensitive to the potential abuse of the pardon power.

The Founding Fathers could have drafted the Constitution to prohibit self pardons. Perhaps they did not do so because they viewed the possibility of a self pardon to be so absurd they did not think it worth addressing. Or perhaps they believed that wrongdoing by a president should be addressed through the political process of impeachment.

How the courts would rule on the legality of a self pardon is unclear. It would depend in largely on how judges see their role in interpreting the Constitution. Whatever the legal authority, a self pardon would send tremors through Congress and unsettle many Americans. While the president may have the power to act, this may be a circumstance where it would be wiser not to test the limits of executive power.

Alberto R. Gonzales served as the 80th attorney general of the United States and counsel to the president in the George W. Bush administration. He is now professor and dean of the Belmont University College of Law.