It is a fundamental legal principle, and indeed a basic principle of fairness, that no man should be the judge in his own case. Ask the average person on the street whether they could fairly and without bias decide their own guilt or innocence, and the honest among them should say no.
The Constitution is maddeningly silent when it comes to whether a president should be able to evaluate his own guilt.
But the Constitution is maddeningly silent when it comes to whether a president should be able to evaluate his own guilt — at least, in the context of pardons, a power we already know President Donald Trump loves. This is likely to be because the founders simply didn’t think a president would ever be brash or corrupt enough to engage in pardon-worthy behavior, and then to pardon himself.
But whether the founders could anticipate it or not, the question of whether Trump can pardon himself for federal crimes is back in the news. Trump sure seems to have incited an insurrection Wednesday in Washington, D.C. An angry mob of Trump supporters listened to him tell them to “fight like hell” and head to the Capitol — which they did. Lawmakers inside donned gas masks and used furniture for protection. While Trump may not be legally liable for inciting violence or sedition, the fact that we’re having the discussion is startling.
But pundits and scholars aren’t the only people having these discussions. Trump has suggested that he would like to pardon himself, according to The New York Times.
It’s hard to know exactly what federal crimes Trump might be worried about (pardons don’t apply to state prosecutions). But just a few days ago, Trump pressured Georgia Secretary of State Brad Raffensperger to overturn the results of the presidential election in Georgia. Trump’s conduct may have amounted to a federal criminal violation (in addition to a violation of Georgia law). For instance, if Trump knowingly and willfully attempted tried “deprive or defraud the residents of a State [Georgia] of a fair and impartially conducted election process,” by obtaining or counting ballots that he knew are “materially false, fictitious, or fraudulent,” then he could be guilty of a federal crime.
While the Constitution isn’t clear on the question of self-pardons, it’s clear that such an action would be a terrible idea. It would place the president of the United States above the law, regardless of what she or he does. It would make the president unaccountable for any federal criminal behavior. And it would fundamentally undermine our idea of justice.
But the solution to this lack of clarity isn’t to pass another law limiting the president’s pardon power. Rather, the solution is to elect honest presidents who don’t commit crimes. The solution is also to adhere to the norms and procedures we have in place. We have an Office of the Pardon Attorney as part of the Justice Department. We should let it do its job. Not every potential transgression by Trump should be solved by a new law.
Back to the issue of constitutionality: The Constitution provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This means the text of the Constitution doesn’t specifically reject the idea. The founders clearly knew how to create exceptions to the pardon power — they created one for cases of impeachment. And if the founders decided not to create an exception for self-pardons, some have argued, it is improper and incorrect to read one into the text.
On the other hand, the Office of Legal Counsel argued that the president lacks the power to self-pardon in a memorandum issued right before President Richard Nixon resigned. The lawyers argued that, on a basic level, “no one may be a judge in his own case.” (The memo did point out that the vice president or Congress could pardon a president in certain situations.)
Then there’s the question of equality, and the American justice system decrees that no one is above the law. If the president could pardon himself for any federal offense, he would be operating without accountability. There is also an argument that a pardon inherently requires two people, the person giving the pardon and the person receiving it. Indeed, having the “power to grant” a pardon certainly seems to envision a grantor and a grantee.
Because no president has ever tried to pardon himself, there are no easy answers. We are again operating outside our societal and historical norms.
But here is what will happen if Trump tries.
First of all, there is no way to stop him — at least not initially. Instead, during the Biden administration, a federal prosecutor would have to charge Trump with crimes falling within the scope of the pardon. Next, Trump would have to raise his self-pardon as a defense against the charges. The federal prosecutor would then have to argue that the self-pardon isn’t effective. This is the chain of events that would tee up the legal question about a president’s power to self-pardon.
The Justice Department under President Joe Biden may not have an appetite for this politically charged experiment. It would, of course, be terribly divisive and wrenching to live through a trial of a former president. But if we collectively care about the rule of law, if the Justice Department is truly that — a place for justice — then it shouldn’t matter.
In the end, not every open constitutional question needs to be answered. The answer is to elect presidents who don’t push us, over and over again, to the brink of constitutional crises. The Constitution provides a floor, not a ceiling, for behavior. More often than not, it tells us how far is too far. And presidents shouldn’t engage in behavior that pushes the Constitution to its breaking point. Our governing document is more fragile than we think.
Jessica Levinson, a professor at Loyola Law School, is the host of the “Passing Judgment” podcast. She is also the director of the Public Service Institute at Loyola Law School, co-director of Loyola’s Journalist Law School and former president of the Los Angeles Ethics Commission.