No, he *cannot* just pardon himself
The limits on the pardon power — and how to enforce them
There’s a weird tic that happens in most news stories on Trump’s trials. Usually it’s a single sentence — or really, a single clause — on how if he wins, he could “seek to pardon himself.”
And that’s it. The story moves along. As if that’s normal and would be the end of the saga.
But of course, it wouldn’t end there. A Trump self-pardon would be among the most dangerous and contested moments in American legal history, dwarfing Watergate or Iran-Contra or Whitewater.
And while a self-pardon has never been tested by the courts (no president has previously faced criminal charges, let alone considered attempting a self-pardon), there is a strong case that such a brazen move would not hold up. Especially if the other two branches of government uphold their constitutional responsibilities in our system of checks and balances.
The pardon power is not absolute
The presidential pardon, which is defined by 20 words of Article II of the Constitution, is in fact a fairly nuanced power — hardly a categorical, king-like elevation of the presidency above the law. That’s the argument of a new report by Grant Tudor and Justin Florence:
Checking the Pardon Power: Constitutional limitations and options for preventing abuse.
In the report, they explore the history of the pardon power as well as the legal precedent that shapes its limits. The pardon power was designed, according to the Supreme Court, as a tool for justice and mercy (an “act of grace”) and to further “the public welfare.” Accordingly, it is — again, per the federal courts — not “limitless” and, instead, “part of the Constitutional scheme.”
As one federal court has held: “The President, who exercises that power as the elected representative of all the People, must always exercise it in the public interest.”
As a constitutional power, its limits must also be, according to SCOTUS, “found in the Constitution.” So what sort of pardons are violations of the Constitution? As Grant and Justin argue, there are four constitutional limitations on the pardon power:
Presidential pardons cannot undermine other parts of the Constitution, including constitutional rights. This one’s pretty obvious — the president cannot, for example, pardon someone against their will if doing so effectively violates their Fifth Amendment rights, as Woodrow Wilson tried to do. Or they can’t pardon someone for contempt of court if it undermines the judiciary’s ability to fulfill its constitutional role.
Presidential pardons cannot violate criminal law. For example, when President Bill Clinton pardoned Marc Rich in 2001 in what appeared to be a quid pro quo for donations, federal prosecutors empaneled a grand jury to investigate the act as a potential violation of federal bribery law.
Presidential pardons cannot license future lawbreaking on the president’s behalf. Such pardons would breach the president’s duty to faithfully execute the law, particularly when the president’s own interests are implicated. The nub here is the “Take Care Clause” — that is, the president must exercise presidential powers on behalf of the public interest, not for self-dealing purposes.
And finally, the big one…
Presidential pardons cannot place the president above the law. Either a self-pardon or what Grant and Justin call a “self-protective pardon” (one that impedes an investigation into a president and therefore amounts to a self-pardon) would violate numerous constitutional provisions and principles, including that ours is “a government of laws, and not of men” and that as such, no president is “above the law.” As the Supreme Court has reiterated time and again: “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
Self- and self-protective pardons would flagrantly subvert this central principle by rendering the president a king.
Again, this has never been tested explicitly, for good reason. But the Framers, the Constitution and the Supreme Court have been crystal clear that the president is not above the law. I won’t list all the data points here, but Grant and Justin’s documentation is extensive. See for yourself.
What happens if he does it anyway?
As we know from the past 7 years, the guardrails of our democracy are not self-enforcing. The checks on the pardon power are only meaningful if the people tasked to enforce them by our Constitution… actually enforce them.
In the report, Grant and Justin describe lots of ways all three branches can check potential abuses on the pardon power, from Congress conducting oversight and passing the Protecting Our Democracy Act to the executive branch investigating criminal abuses (as they did in the Marc Rich case). And, of course, the judiciary would have the final say on the constitutionality of certain pardons.
But I also asked Grant what those of us who aren’t judges or lawmakers can do about the threat of unconstitutional pardons. His answer:
It’s pretty simple: don’t normalize — or allow to be normalized — the notion that the pardon power is somehow unlimited. It’s not. All presidential powers are constrained by the rest of the Constitution. The pardon power is no exception.
Just because potential brazen acts like an attempted self-pardon have not been tested in a court doesn’t mean that the answers are not self-evident. The Framers did not draft a Constitution after freeing themselves from a monarch only to slip into that document a king-like escape hatch from the law.
So next time you hear those four words, “seek to pardon himself,” just mentally tack on the omitted rest of the sentence.
“...which would likely be unlawful and in the process ignite a constitutional crisis that engulfs the core of our democracy.”
How to defang the motion to vacate
This week the House of Representatives again teeters on the edge of chaos with Marjorie Taylor Greene’s motion to vacate hanging over Speaker Johnson. The threat is clear: if he moves forward with Ukraine aid, his right flank will seek to force him out of the job.
Does governance really have to include the threat of blackmail? It does not.
Right now, House rules are oriented around a top-down, polarized two-party system, with a clear majority party and minority party. But the current House is effectively operating as a coalition government between moderate Republicans and Democrats. Exploring changes to the rules that could help our House work in a multi-party democracy can also help the current House work better.
In an article in POLITICO, Lee Drutman, Cerin Lindgrensavage and Robert Oldham propose a simple, constructive fix. Literally.
It’s called a “constructive motion to vacate” and it could restore some sanity to the House:
The House should immediately vote to change its rules — not to eliminate the motion to vacate, but to defang it, and even turn it into something constructive. What would that look like? It would be almost exactly like the current motion to vacate, with one big exception: The resolution to depose the speaker must also name a replacement speaker to take over. With this change, a disgruntled majority faction would not be able to ally with the minority party to replace “something” with “nothing,” as Democrats and eight Republicans did last October when they agreed on ousting Kevin McCarthy but not on his successor.
A conservative proposal for proportional representation in Wyoming
A proposal for proportional representation for the Wyoming state legislature is gaining momentum.
Yes, Wyoming.
How? It’s being developed by conservative reformers based on a specific aspect of the state’s political culture: a tradition of county-based elections. In Wyoming, as in other states, districting along county lines was ruled unconstitutional under “one person, one vote” — counties have different populations, and so following county lines leads to distorted representation and malapportioned districts.
Among the many benefits of proportional representation is that it allows line-drawers more flexibility to follow existing political geography, like county lines, without distorting representation. So Wyoming can go back to whole-county districts without violating the Constitution. Here’s what the map could look like, with a number of representatives per district, elected proportionally:
According to the conservative Rainey Center, the proposal already seems to be popular among the state’s voters. Plus:
Even more interesting was the ideological and religious breakdown of support. Among strong Trump supporters, support was an overwhelming 50 percent to just 19 percent opposed. Among Mormons, who comprise about a tenth of Wyoming’s population and are concentrated in the southwestern counties, support was 59 percent to 15 percent opposed. Among ideological groups, conservatives and libertarians had the strongest support followed by moderates.
This is a good example of how proportional representation is a win-win reform. A win for conservatives who want a return to county-based representation. A win for the state’s various political minorities who will have an easier time securing representation in a deep-red state. A win for democracy in general.
Read more.
What else we’re tracking:
“Is corporate America in denial about Trump?” Jonathan Mahler asks the question in The New York Times Magazine, with insights from Rachel Kleinfeld, Ian Bassin, Kim Lane Scheppele and other top experts. Perhaps this article can be a wake-up call.
Tova Wang has an excellent roundup about what other countries can teach us about voter turnout for the Institute for Responsive Government. Big takeaway: “Study after study finds that proportional representation systems lead to higher turnout than first past the post.”
The RNC is courting conspiracy theorists to serve as poll watchers, reports States Newsroom. Jessica Marsden: “There’s this common thread of almost pseudo-science.”
It’s not just Trump, the Republican electorate as a whole is becoming more openly authoritarian. Aaron Blake dives into some scary recent polls: “The increasingly authoritarian-curious Republican Party.”
For those following the so-called “jawboning” cases at SCOTUS — and especially for those who don’t know what jawboning is — Ori Lev has a helpful explainer in Lawfare.
“2024, Meet 1892, Your Doppelganger” — a great read on a forgotten historical parallel to this moment by Jon Grinspan. The surprising upshot? “Great political change can unfold when the system seems woefully stalled.”
Nineteen retired four-star generals, admirals & former service secretaries weighed in at SCOTUS on the question of presidential immunity. “[Trump’s] theory that the President is absolutely immune from criminal prosecution, if accepted, has the potential to severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law.” Christine Kwon explains the brief and its significance here.