Academic journal article The Yale Law Journal

Pardon Me? the Constitutional Case against Presidential Self-Pardons

Academic journal article The Yale Law Journal

Pardon Me? the Constitutional Case against Presidential Self-Pardons

Article excerpt

August 1, 1974. As Richard Nixon's presidency rapidly neared its end, his aides outlined his options. One possibility discussed was for Nixon to pardon himself and then resign. His lawyers prepared a short memorandum concluding that a self-pardon would be legal.(1) Nevertheless, Nixon decided against a self-pardon, resigned, and left his fate in the hands of President Gerald Ford.(2)

Christmas Eve 1992. President George Bush had lost his bid for reelection and would be in office for only one more month. Special Prosecutor Lawrence Walsh had persisted in his pursuit of Iran-Contra suspects. Bush decided to pardon several of them, leaving himself as the most prominent prosecutable figure.(3) Several commentators speculated that Bush might pardon himself for his role in the scandal, and many assumed that such an act would be valid.(4) One stated, "[F]or a president to pardon himself would, admittedly, be an act of unprecedented chutzpah, but the Constitution does not forbid it, containing nothing that circumscribes the power . . . ."(5) Others disagreed, including Walsh and his staff.(6) As one commentator wrote. "We have not recognized the power of a president . . . to pardon himself. On the contrary, one of the most fundamental principles of justice is that a person shall not sit in judgment of himself."(7) In the end, like Nixon, Bush did not pardon himself. His gamble paid off; he was not indicted.(8)

I. The Pardon Power

The President's power to pardon is stated simply in the Constitution: The President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."(9) By limiting pardons to "Offences against the United States," the Constitution means to place private civil and state criminal cases beyond the President's reach.(10) By excepting "Cases of Impeachment," the Constitution stays the President's hand when Congress is doing the prosecuting instead of the executive branch. The President cannot stop the House from impeaching a federal official, nor can he undo the punishment the Senate doles out upon conviction.(11)

Other than these limitations, the President's power seems plenary and quite flexible. Pardons can be granted at any time after a crime has been committed: before federal criminal charges are brought, after conviction and sentencing, or any time in between.(12) They can even be granted after the full sentence has been served, solely to restore the pardonee's civil rights.(13) The President can give amnesty to a vast group of federal offenders,(14) or he can pardon a single offender for a broad, unspecified range of crimes.(15) He can reimburse fines

and forfeitures,(16) grant reprieves,(17) free prisoners, commute sentences, (18) or attach a range of creative conditions to any of these options.(19) The only restraints on the pardon power that have been formally recognized are those explicit in the text of the Pardon Clause. This Note contends, however, that a further limitation on the President's power, a preclusion of self-pardons, is implicit in the Constitution.

The cases of Presidents Nixon and Bush, and most recently of President Bill Clinton,(20) have raised the specter of such self-pardons. Despite the potential political and historical magnitude of such an act, and despite the disagreement among those who have discussed its legality, the self-pardon has received little attention from scholars.(21)

This Note is intended to remedy that neglect and make a constitutional argument against the validity of self-pardons. It does so by applying the most widely recognized methods of constitutional analysis: historical, textual, structural, and doctrinal (precedential).(22) While there is some overlap between these methods, each of the arguments is presented here as analytically distinct. This Note does not claim that any of these analytic modes alone provides a definitive answer to the question of self-pardons@ Considered together, however, they show that the argument for legality is grossly oversimplified, and that the evidence for the unconstitutionality of presidential self-pardons is substantially stronger. …

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