Policy Summary: Under Article II, Section 2 of the U.S. Constitution, the President of the United States has “the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment.” This power is vested exclusively in the President and only applies to federal crimes. A president has no authority to pardon persons convicted of crimes under state laws. That would be the responsibility of the state governor where the state crime was committed.
On August 5, 1974, Acting Assistant Attorney General Mary Lawton of the Office of Legal Counsel issued a memorandum opinion titled Presidential or Legislative Pardon of the President. The purpose of the memo was to clarify legal questions with regard to a possible pardon for then President Richard Nixon. President Nixon was facing calls for his impeachment in connection with the Watergate burglary. (President Nixon would resign five days later). Her memo took the position that the President would likely be unable to issue a pardon for himself. And as for a possible legislative pardon, she took the position that Congress could not enact a legislative pardon as this would probably be in conflict with the President’s exclusive pardon power under the Constitution.
During the Trump Presidency author Jack Goldsmith has calculated that the President, as of November 10, 2020, has issued forty-one pardons or commutations of sentences. 88% of these pardons and commutations have a personal or political connection to the President. On June 4, 2018 on his Twitter account President Trump claimed that he had the absolute right to pardon himself. With the end of the Trump Presidency in sight, President Trump has granted a full pardon to General Michael T. Flynn with more expected in the coming weeks, including a likely contentious pardon to all of his adult children for their work and activities during the Trump Presidency. LEARN MORE
Policy Analysis: The Constitution is clear that the power of the pardon resides with the President of the United States. There are no conditions or limitations attached to the power such as having to confer with Congress first or having his pardons be approved by the Supreme Court. The current process to request a presidential pardon through the Office of the Pardon Attorney in the Department of Justice requires submitting the request through this office for evaluation. A recommendation is drawn up and sent to the President but as a practical matter the President’s decision to issue a pardon is up to him. He does not have to follow the recommendation of the Office of the Pardon Attorney and can issue a pardon to whomever he chooses even if the request did not originate in the Office of the Pardon Attorney.
This brings up the thorny question as to whether the President can issue a pardon to himself. The memorandum opinion authored by Ms. Lawton more than forty years ago starts off with a fundamental principle of American law. That no one in America, even the President, should be a judge in his own case. This is a key principle because it supports the notion that everyone should be able to have a fair and neutral person, such as a judge, examine the facts of their accusations and be able to come to a reasoned conclusion as to the innocence or guilt of that person. President Trump’s assertion that he can issue a pardon for himself completely upends this principle and his assertion should be categorically rejected. It defies not just the legal rationale of having neutral judges decide disputes but also common sense. If President Trump can issue a pardon to himself that would mean that there would be no mechanism to hold the President accountable for acts he undertakes. Acts that would not be for the benefit of the United States could be authorized and then after the fact wiped clean from the President’s record so that he would not be responsible for it in any way. As an analogy, ordinary citizens accused of crimes do not have the power to decide for themselves to absolve themselves of crimes that they commit. They must answer to a neutral judge in open court. Just because a person has risen to the Office of the President does not mean that the laws should no longer apply to him.
If President Trump is to be held accountable for possible crimes he may have committed than the President should answer before a neutral judge just like all other ordinary Americans do. The power to grant a pardon to himself should not be a power that a President should be able to exercise no matter the circumstances. LEARN MORE, LEARN MORE
Engagement Resources:
DOJ Office of the Pardon Attorney – website of the office handling pardon requests.
Pew Research Center – research institute providing comparison of statistics on presidential pardons.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.