Can the President Pardon Himself?

Would a presidential self-pardon be valid?

My answer—no, it wouldn’t be—was first registered back in the 1900s, when I wrote my student note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons. This was the beginning of my principal scholarly focus: “weird constitutional stuff that probably won’t ever happen (but if it ever does, wow!).”

As President Bush’s term draws to a close, people are starting to ask me about self-pardons again, just as they did at the end of President Clinton’s—and just as President Nixon asked his lawyers before he resigned (they said he could self-pardon, and he contemplated it). Not that partisans ever believe it, but my answer has been the same regardless of which party the president in question belongs to.

There are good arguments on both sides of the question, and Chapter 3 of my book-in-progress (Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies) deals with them in more detail than my note, and in much more detail than this post. The chapter starts with a hypo (after which, in this post, I will sketch out the legal analysis):

The last year of his second term have been a non-stop political and media circus for President Smith. He and his top operatives have been embroiled in a complex and confusing scandal, with a seemingly endless stream of allegations of bribery, tax evasion, abuse of the power of the presidency, and, for good measure, some violence and drugs.

Smith paid a price for the scandal, to be sure, but the political backdrop—extremely intense partisan division in the country—allowed him to fight back. He consistently and strenuously maintained his own innocence and attributed the matter to the political opportunism, dishonesty, and malice of his opponents. Indeed, his most vocal critics were so shrill and hypocritical that most of Smith’s allies continued to support him.

All of this turmoil came to a head in last week’s presidential election. Unfortunately for Smith, his chosen successor, Vice President Jones, narrowly lost the election to Governor Miller. Now that the opposition controls the White House, it looks like the investigation against Smith will expand and be led by Smith’s political enemies, now wielding the substantial weapon of Miller’s presidential power. Indeed, the rumored choice to lead the prosecution, Tom Taylor, is well known both as a tough prosecutor and as a critic of President Smith’s conduct.

Smith makes a fateful decision. He pardons his aides implicated in the scandal “for any crimes they might have committed” during his two terms, and then he pardons himself using the same vague formulation. Explaining his decision on national television, he states again that he and his aides have done nothing wrong, and that he wants to spare the country the expense, distraction, and vitriol of a continued investigation led by his vindictive enemies. “For ten months these scurrilous people have paralyzed the country. We’ve been unable to work on the real problems Americans face,” he says. “It looked to me like this problem was about to get worse. Enough is enough. With this pardon, I’m taking decisive action to finally end this long national distraction.”

Smith’s opponents are enraged. They claim that the self-pardon is constitutionally invalid and they call for the investigation to continue. If Smith had resigned and let Vice President Jones pardon him, they argue, the pardon clearly would have been valid and would have avoided this legal snarl. But Smith had always maintained his innocence and refused to resign, and Jones was not entangled in the scandal at all. Jones might want to run for president again, and she clearly had no desire to compromise her future political viability by accepting the presidency for two months in exchange (seemingly) for pardoning her troubled boss. For his part, Smith did not want to take the chance that Jones would not pardon him, and he also did not want to put her into the position of having to choose.

Smith’s supporters—publicly defensive, privately gleeful—confidently assert that a president has the constitutional power to pardon himself and that Miller and Taylor should give up the case. Nobody seriously doubts that if the parties were reversed, everybody would be making the exact opposite legal arguments, and just as loudly. At any rate, it seems that the expense, distraction, and vitriol of this long national distraction are not over just yet. Smith leaves office, Miller takes over, and Taylor gets a grand jury to indict Smith. Smith cites his pardon and moves to dismiss the indictment. This case is going to the Supreme Court.

The thing about self-pardons is that there is probably no way to answer the question of whether they are valid or not, until and unless an actual president issues an actual self-pardon and has it tested in court. All I can do is lay out the things I think that court would chew on.

The main argument in favor of self-pardonability is that the Constitution gives the president a broad power to pardon and carves out some specific limits, but self-pardons aren’t one of them. The Constitution says that presidents can only pardon federal crimes, and that pardons can only affect criminal sanctions, not congressional impeachment. Another limit, implicit in the definition of a pardon, is that it can only reach past actions; pardoning someone for something he hasn’t done yet would be a suspension of the law, not a pardon. Those are the only limits, say proponents.

But that last point tees up the best textual argument against self-pardons. The pardon power only empowers the president to issue “pardons,” obviously, so we need to figure out what a “pardon” is. One can argue that a pardon is, by definition, something you give to someone else. But that’s a bit circular; a court could also say, “no they aren’t,” and thereby make it so.

There are structural arguments on both sides too. Opponents of self-pardonability can point to the limited nature of the presidency, and to the myriad constitutional prohibitions on self-dealing and self-judging. Not all of these prohibitions are explicit. The Constitution would seem, for instance, to give the vice president the power to preside over his own impeachment trial, but some people read into the Constitution an inherent prohibition on such a thing. If you have a problem with a VP presiding over his own trial, you should have an even bigger problem with self-pardons.

Proponents can respond that the pardon power is broad enough to accompany all manner of ghastly pardons. A president can pardon his co-conspirators; he can pardon his VP, step aside, and have his VP pardon him. If he can do those things, why not pardon himself? The check on all of these self-interested pardons is not to pretend that the pardon power has (awfully convenient) implicit limits. The check is impeachment, and possibly prosecution—a self-pardon, even if valid, might constitute a crime and an impeachable offense, just like one given in exchange for a bribe would be.

Those who look to original intent can support either side too. As I discussed in a post here a few days ago, when the possibility of treasonous presidents pardoning their co-conspirators came up, the response was that such presidents could be impeached and prosecuted. Surely this discussion is incompatible with the delegates understanding that the president could pardon himself. They probably didn’t think self-pardons were possible, under basic principles against self-judging. At the very least, though, they didn’t consider the possibility.

Finally, opponents would probably emphasize the general point that nobody can put himself above the law, that no one can be the judge in his own case, etc. Proponents could respond that these principles, for all of their venerability, do not rise to the level of a constitutional requirement.

The main question I have faced when I have promoted this topic—and most of my others—is, “why should we worry about this, given how unlikely it is?” (at least I think that’s what people are thinking when they roll their eyes).

For self-pardons, I have two answers. One is to say that analyzing questions like this gives us an opportunity to test our assumptions—about pardons in particular, and about constitutional interpretation in general. Plus, they’re interesting and fun to think about.

The second is that it might actually happen. My fictional hypo paints the picture I see when I envision a self-pardon; another version would involve a clearly guilty, totally shameless Blagojevich-type crook. Neither scenario is beyond the realm of imagination. The point, though, is that it is worth thinking about in advance, before the analysis gets clouded with the sort of party-line interpretations one saw in the Clinton impeachment case.

That said, there is probably nothing anyone can do to actually settle the question in advance, short of amending the Constitution. It’s hard enough to amend the Constitution to fix actual problems, though, so it is not really worth contemplating amending it to preempt this merely hypothetical one.

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11 Responses

  1. A.W. says:

    I think it is exceedingly obvious by the text of the constitution that the president can pardon himself. Why? Expressio Unius.

    For non-lawyer types listening in, it is the ancient principle that the expression of one thing implies the absence of others. So if you see a sign at one light that says “no turn on red” and the next light says nothing, then you can assume there that you can indeed turn on red.

    having expressed that the president may not pardon himself from impeachment, then it implies that he can pardon himself from anything else.

    Further, to define a pardon as something given to another… well, first my copy of black’s law dictionary says nothing of the sort. Further that provision of the constitution declaring that the president cannot pardon from impeachment suggests that they understood that absent their intervention, ordinarily it would include that power, too. So if we treat the constitution as a limited dictionary, clearly they define “pardon” to include pardoning yourself.

    Finally, there is the desire not to do the thinking for the framers. Clearly the framers recognized the possibility that a president might committ criminal conduct that would at least be impeachable. It further occurred to them that the president might use the pardon power on himself. Having recognized it as a possibility, surely it occured to them that the president might not only try to pardon himself from impeachment, but also from criminal punishment. Having considered the possibility, the founders chose not to put in that obvious limitation, knowing full well that expressio unius and so on would imply that the president has the power. So by the plain language alone, i lean toward saying the president has the power.

    Respect for the founders requires us, at the very least, to say that when they have spoken on a subject, to respect what they said. Now you could try to split hairs and pretend they talked about self-pardon for impeachment but not self-pardon for the criminal process, but we all know that if you consider the possibility of self-pardon for the purpose of impeachment, then you will naturally consider the possibility of self-pardon for criminal punishment purposes. its all one subject.

    And i say that without any examination of the history of the pardon power. Had there been any example of a pardoner pardoning himself.

    So what i see is a regime where a bad president might avoid jail or even execution for crimes against this country, but can still be removed by impeachment. it does give the president a defacto immunity if he so chooses, but at a severe political price, because many would see that as an open confession of misconduct. And what it would prevent is the evil of politically motivated prosecutions. I mean look, we all know what the subtext is: what if bush pardons himself, then he can never pay for his crimes! i don’t think the author thinks that exactly, but he probably sees that desire and that anxiety and it made him bring up his old student note. But really would it be so bad if Bush says, as he leaves office, “you know what? i am not going to be crucified for what i did. i pardon myself.” It would taint his reputation permanently, though not as clearly as it would if, say, Richard Nixon had done it. but once the hew and cry died down, it would put that chapter to bed (and Barrack can continue quietly adopting all the policies the left claimed was evil in the first place). Is that such a horribly outcome, especially in terms of our political discourse?

  2. Joe says:

    “back in the 1900s, when I wrote my student note”

    Good grief, you’re old…

  3. Brian Kalt says:

    Joe, I meant the century, not the decade 🙂

  4. A.W. says:


    That reminds me of how when i was in my first semester at law school, where the semester started in 1999, and the exams ended in 2000, I was writing something like “this smacks of the totalitarian regimes that have plagued the world throughout this century.” Then it suddenly hit me, and i had to correct myself “throughout the LAST century.” I even added in a parenthetical reminding the professor of the turn of the millenium because it was so unnatural to me to think of any part of my life as “in the last century.”

  5. Aaron says:

    I don’t understand: If a person is innocent until proven guilty, then in the eyes of the law that person has not committed a crime until convicted. I do not understand how an executive could pardon a person who has not been convicted of a crime.

    To that end, I think that the President would probably have Constitutional authority to pardon him/herself if convicted of a crime during his term; but not of imaginary crimes which do not yet exist in the eyes of the law. A President cannot pardon any person (including himself) from a crime for which he has not been convicted.

    Of course, Executive authority to pardon oneself has logical limits. If a President could pardon him/herself from conviction on Congressional impeachment, then it would render that essential legislative check on Executive power a dead letter.

  6. Brian Kalt says:

    Aaron, it is well established that pardons can precede conviction (see, e.g., Ford’s pardon of Nixon). Such pardons have been politically controversial, but legally sound.

    Not at all established, though, is the proposition in your second paragraph–no one can say for sure whether presidents can be prosecuted while in office (which is actually the subject of Chapter 2 of my book).

    Pardoning away an impeachment conviction wouldn’t be possible in any case–at the moment of conviction, the president would no longer be president, and so would no longer have the power to pardon.

    The logical flaw in your conundrum is the notion that pardons are about removing guilt, or can do no more than commute a sentence. In fact, pardons are about removing consequences–including potential prosecution–in a much more general sense.

    These things (as well as the things A.W. addresses) are answered more by my note than I can get into here.

  7. Aaron says:


    Thanks for the clarification. That actually helps quite a bit.

  8. TGP says:

    i have been a fan of that law review article since i first read it last year. The linking of the self pardon to offending the constitution i thought was a particularly important argument as thats one of the few restrictions the courts have been wiling to contemplate.

    it just seems wrong to allow a person to escape consequences by pardoning themselves, self judging as you term it. this is a notion that many people will have an intuitive agreement with but be unable to articulate exactly how the plain reading of the text prevents it.

    Also, on the older post regarding the nadler amendment proposal, i must agree that we simply do not have a record of amending the constitution over minutiae, or much at all. If we were to go back and do some cleaning up add preventing self pardons to the amendment.

  9. toothpick1 says:

    If a pardon is corrupt (paid for) or abusive, (designed, say, to foster and protect a criminal conspiracy involving the president), then why is the remedy only impeachment and prosecution of the president? Why should the pardon itself be valid? A thief can’t transfer good title; why should a president’s criminal act create any legal entitlement?

  10. Jill says:

    Bush the Jr. cannot just say: “I pardon myself” or “I pardon Dick Cheney”, can he?

    Isn’t Bush obligated to state which crime(s) for which Bush is pardoning himself or someone else?

    It just doesn’t make sense otherwise. Unless someone is under indictment, convicted, and either doing or have completed their time, there is no reason for a pardon to be issued.

    Now if one of Bush’s cronies committed a crime which they have not yet been caught at or even suspected of, and seek a pardon for that crime, then the public should have the right to know what the pardon is for! And if that’s the case, it would make asking for a pardon a very risky proposition right now! There’s a good chance Bush’s pardon power is as weak, useless and ineffective as he has always been as a human being, let alone a president.

    The clock is ticking on how long before Bush’s pardoning powers go limp! It would seem some folks have difficult choices to make, or at least I hope so! Admit that they need a pardon for crimes no one yet knows they’ve committed, and hope Bush’s ability to pardon them will remain in tact? Or just keep their mouths shut, knowing that the Bush Administration will be put under the most intense amount of investigation in history, and chances are their crimes will be unearthed anyway.

    Decisions, decisions….

    And of course, this applies to Bush the Jr. too. He cannot give himself blanket pardon for anything he did over a period of 8 years in office! We need specifics, so it can be determined if his pardon would even apply since Bush cannot pardon just any person for any crime!

    If he’s going to issue ANY pardons, he better think long and hard about the risk of having his pardon ability tossed out altogether, because we may hear of a whole lot of crimes he and his cronies committed that we never would’ve otherwise heard of, and most likely will be able to prosecute them anyway.

    Think about it! If Hitler had pardoned himself that last night in his bunker and had not killed himself, would anyone have cared about his own ability to pardon??? Of course not! He would’ve been prosecuted and executed anyway.

    So why are we all caught up in what Bush wants to do with his so called pardon power. Criminals lose all powers and rights.

    And a criminal is what Bush and Cheney both are!

    Bush and Cheney deserve to spend the rest of their days in a really dirty, filthy, terrifying prison before they are finally executed for their crimes against humanity, and all their assets, both here and abroad seized and handed over to the American taxpayers.

    Now THAT’s a stimulus check I’d love to receive!

  11. Brian Rabbit says:


    “I mean look, we all know what the subtext is: what if bush pardons himself, then he can never pay for his crimes!” Actually, when I read this, I thought back to such scenarios with Bush 43, Clinton, /and/ Bush 41 (for the Iran-Contra affair). This issue certainly is not limited to the actions of Any 1 President.