We would be a dictatorship, not a democracy
Harvard professor of constitutional law Noah Feldman says no, Trump can’t pardon himself, not because it would break a rule but because it would be the end of the US.
Here’s some unsolicited advice for President Donald Trump: Don’t listen to any lawyers who might tell you that you can pardon yourself, or even that it’s a close legal question. You can’t — and no court is going to rule otherwise.
There’s a decent historical argument about why, but it’s beside the point. The bottom line is that if the president could pardon himself, we would no longer have a republic — nor a government of laws rather than men. We would be a dictatorship, not a democracy.
You know that. Americans know it. The Supreme Court knows it. Now let’s move on.
Well I think “You know that” is too optimistic, but anyway.
[A]s early as 1311 (you read that right), Parliament forced the king to promise that he would only pardon “by process of law and the custom of the realm.” The idea was to rein in the pardon power, making it into an instrument of law, not of arbitrary royal prerogative.
Given that worry about the anti-legal nature of the pardon power was already more than 450 years old when the Founding Fathers drafted the U.S. Constitution during the hot summer of 1787, it’s a bit surprising that the pardon power even made it in.
In Philadelphia, the more rights-oriented republicans, like George Mason of Virginia, questioned the whole idea of the pardon power. The more pro-executive participants, like Alexander Hamilton and James Wilson, managed to get it in, albeit without much debate. The idea was that pardons served mercy and could be expedient.
Pardoning oneself obviously has nothing to do with mercy.
But frankly, the history isn’t the point. The basic problem with self-pardon is that it would make a mockery of the very idea that the U.S. operates under the rule of law. A president who could self-pardon could violate literally any federal law with impunity, knowing that the only risk was removal from office by impeachment.
We have a name for an elected leader who is outside the law: dictator. And dictatorship is fundamentally inconsistent with the republic established by the Constitution. In fact, it’s a little difficult to think of any single idea that would more grossly violate the rule of law than a president free to break any and every law and then wave a get-out-of-jail-free card.
Trump is being a dictator in every way he can get away with it.
I can predict with complete confidence that no court would uphold a presidential self-pardon. To do so would be to render the courts essentially useless as checks on the executive, to say nothing of Congress, which passes the laws in the first place.
This isn’t a normal legal problem for courts to resolve by weighing plausible, competing arguments. It’s the whole ball of wax: the survival of constitutional government. The courts will treat it as such.
Good. I hope he’s right. It seems likely that he is – justices are not likely to surrender to a dictator.
Justices usually do surrender to a dictator, such is the nature of dictatorship. They either surrender or they find themselves in jail.
But this would be pre-dictatorship – the judges would be helping Trump to create the dictatorship. I don’t see them doing that.
You’re assuming the issue could be brought before a judge. That may not be a safe assumption anymore.
Is Trump trying to do what the Right were saying Obama was going to do ‘any day now’ for eight years?
Define “trying”… unintentionally doing it while acting in accordance with how he thinks the world does/should work, sure, but to do it with purpose? I dunno…
What intrigues me about Feldman’s good argument is that it shows pretty clearly that the American president is fundamentally an elected monarch, with, for as long as s/he is in power, the prerogatives and powers of an 18th-century monarch – prerogatives that no constitutional monarch in Europe still possesses, or has possessed for a very long time. It would be interesting to approach American (national) history in terms of a struggle between parliament and monarch…
“[F]or as long as s/he is in power” is a rather large provision there on its own, when a U.S. President is (1) elected, (2) for four year terms only, (3) now limited to two of them in a lifetime (plus possibly a smidge if the President steps up as a Vice President finishing another’s term, and (4) is subject to impeachment by the legislature throughout. All of that would be mighty foreign to just about any 18th century monarch.
And even under that provision, 18th century monarchs were rarely as subject to checks by the judiciary, the legislature, subnational government units, public opinion, law and the civil service as a U.S. President has been overall. (Which of those bear how much influence has changed, of course.)
Obviously, the Presidency was crafted to be a capable executive on a footing with the legislature and judiciary as a peer, and with the Constitution written when it was, that 18th century monarch was some sort of model – how many other models for such a thing could they have had, after all? If they figured something was an appropriate power of a government, and they figured it was most usefully assigned to a single person able to respond to very particular situations as they came up, it would land on the President, directly or otherwise in the executive branch. Pardons were one of those, albeit not without some misgivings by some people. I would not be surprised to find out – maybe someone else already has? – that it was intended specifically as a check on the judiciary and to be sure that there’s a role for mercy ultimately to triumph in the criminal justice system.
Certainly there’s a lot to be found out comparing the Presidency to an Enlightenment era constitutional monarch, and comparing the conflicts of branches of government under the U.S. Constitution to (e.g.) Britain’s over a similar time period. But it needs to take very seriously the fundamental, intentional differences between them to be informative.
Actually, 18th-century monarchs were subject to a more than a few checks and balances (there was actually a thing called Parliament in Britain), as were even 17th-century monarchs – Charles I came up against a check with a rather sharp edge…