Are president’s absolute power to pardon himself justified?
A few days back, The Washington Post reported that President Donald J. Trump “has asked his advisers about his power to pardon aides, family members and even himself” in connection with special counsel Robert Mueller’s Russia investigation. Shortly after, one of the president’s personal attorneys denied it, saying that Trump’s legal team is not looking into the question of whether the president can pardon himself.
The report touched off a fierce debate over a piece of the governing framework that hasn’t been critical to the U.S. constitutional law in decades, said Northeastern University’s law professor Martha Davis. That is to say, can a sitting president pardon himself? Davis, a constitutional law expert, said the Constitution’s language is silent on whether a president can pardon himself. Some argue that the absence of a clear prohibition indicates that the power is so broad that a president could indeed try to take such action. Whether that would stand up to Supreme Court examination is an entirely different matter.
The history suggests that Since William McKinley’s presidency, (the earliest that statistics are available from the federal Office of the Pardon Attorney), there have been more than 20,000 executive pardons granted, but none for a sitting president. The section of the Constitution that addresses executive pardons is short. Found in Article II, Section 2, it reads, “The pPresident…shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That’s it. Davis noted that the U.S. Constitution’s drafters drew liberally from the Massachusetts Constitution, which had more explicit limitations for executive pardons, specifying that they could only be issued after a conviction.
Davis expresses, “The Massachusetts language adds support to the position that the president’s pardoning power in the U.S. Constitution is very broad, since the founders had this more limited language in front of them but instead drafted a broader provision.”