There has been much talk recently of President Trump’s ability to pardon. In this post we will explore what it is, and if there are any limits to the President’s power to pardon.
The US Constitution confers what would seem an almost unlimited ability of the US President to pardon: Article II Section 2 states “The President…shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” There are two limitations contained in the clause, one obvious, the other not as obvious. First, the obvious one – the President cannot pardon anyone for impeachment – whether it is impeachment of the President or any other official (such as a Federal judge). Second, the not so obvious one – it says “offenses against the United States”. This is a limitation because offenses against the US are only Federal crimes, not state or local crimes. So, no pardons for impeachment or anything other than a federal crime.
Are there any other limitations, or perhaps expansions, of the President to pardon? We will consider three: First, can the President pardon him or herself? Second, can the President pardon someone not convicted of a crime? and Third, can a Presidential pardon extend to state and other crimes? The short answers to the above questions are, in order, probably not, yes, and probably not.
The first question we consider is whether or not a president can pardon him or herself. It has been assumed that they cannot, because there is a fundamental principle of law that no one can sit in judgement of themselves. However, this basic principle is not in the US Constitution. It is argued that if the authors of the Constitution wanted that exclusion, they would have put it in the Constitution, just as they did with the limitation against impeachment. On the other hand, the US is founded on the principle of common law: that there are fundamental principals of law that are to be applied, and do not need to be explicitly stated – and one of the most basic is that no one can sit in judgement of themselves. Who is right? No one knows for sure, because no one has ever tried to pardon themselves. However, the fundamental principle of not sitting in judgment of yourself has been applied to many other situations, and would probably be applied here by the US Supreme Court. In other words, it is very likely that the US Supreme Court would apply this fundamental common law principle and find that the President cannot pardon him or herself. On the other hand, as I stated in my article “What is Constitutional?”, what is constitutional is whatever at least 5 members of the US Supreme Court says is constitutional.
Some have said that the word “grant” would prevent the President from pardoning himself because you only grant something to someone else – the Oxford-English Dictionary defines grant as “to give, to agree to give, or do something that another person has asked for”. However, Miriam-Webster defines grant as “to consent to carry out for a person : allow fulfillment of grant a request”, it does not say that it must be another person. We grant ourselves things all the time, such as permission to eat that dessert that we love, for example. I do not think this would be a bar for the president to grant himself a pardon.
Also, realize that there is a work-around for the President. Section 3 of the 25th Amendment allows the President to temporarily step aside from being president, in which case the vice-president becomes acting president, with all powers and duties. The vice-president could then pardon the president, and then the president could retake the position of president. This is a viable option so long as the vice-president agrees and does it. The only requirement for the president to step aside temporarily is for him to inform in writing to the House of Representatives that he is unable to discharge his duties as president, and when he is ready to again assume the presidency, to inform them in writing again he is ready. One would think that such actions would lead to impeachment of the president, both because of how one would do it and whatever the president may have done to warrant the pardon. However, there is no requirement for Congress to do so.
The Second question we consider is whether the President can pardon someone who has not been convicted of a crime. The answer to that is simple: the President can, and Presidents have done this. A good example is when President Ford pardoned former President Nixon – Nixon was never convicted of a crime. There is nothing in the Constitution that requires the President to wait until a person is convicted, or even charged.
The Third question we consider is whether a Presidential pardon would also apply to any non-federal crimes. The short answer is no, because as stated earlier, the US Constitution states it is only crimes against the United States, which are Federal crimes. However, there is another section of the Constitution that may extend a Presidential pardon to non-federal crimes. The 5th Amendment to the Constitution basically states that you cannot be put in jeopardy/stand trial twice for the same offence. The most common way to interpret this clause is that once you have been found not guilty, the government cannot try you again in an attemp to get a conviction. The argument goes that if you are pardoned by the president for a crime, it is like being found not guilty, and if you then have to face trial under state or local law, it is like being put in double jeopardy, which is not permitted under the constitution. However, state crimes are separate crimes than federal crimes. An action could be a crime under one but not the other, or could be a crime under both. Just because one action is a crime under both does not mean they are the same crime (offense) -they are separate crimes, with different elements and consequences. Defendants have faced trials under both Federal and State statutes since the beginning of the country. However, again, the question of what is constitutional is whatever at least 5 members of the US Supreme Court says is Constitutional – there is a lawsuit now in the courts challenging this very question.
In conclusion, we see that the President’s power of pardon is vast, but like other powers under the Constitution, is not unlimited.