President Clinton promised this month not to pardon himself. It’s surprising to see Clinton voluntarily relinquish a legal weapon, but even more surprising that he had his hands on it in the first place. Can the president really pardon himself?
No one knows the answer. The Constitution says that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This sentence, like many in the Constitution, can reasonably be interpreted in several ways. And since no court has ruled on this issue–because no president has ever tried to pardon himself–it remains an open question.
The simplest interpretation is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.
A competing interpretation is that the power to pardon “except in cases of impeachment” means the president cannot pardon someone who’s been impeached, or at least cannot pardon the offenses which led to an impeachment. This interpretation not only prohibits Clinton from self-pardoning, it also prohibits a future president (e.g. Al Gore) from pardoning Clinton. (It was kosher for Ford to immunize Nixon, under this interpretation, because Nixon was never impeached.) The problem with this argument is that the Constitution elsewhere (Article I, Section 3) makes a distinction between “cases of impeachment” and subsequent criminal prosecution for the same offenses. So it’s unlikely that the founding fathers were referring to the subsequent criminal prosecution when they restricted the power to pardon.
The last interpretation–a linguistic argument–is that “granting” can only be done unto others, not unto oneself. So Clinton can’t pardon himself, though Gore is welcome to pardon Clinton if and when Clinton is no longer president. Moreover, the Constitution clearly recognizes that conflicts-of-interest should be avoided. For instance, the Constitution prohibits Congress from voting itself a pay raise (one Congress may vote the next a pay raise, however), and it specifies that during an impeachment trial the Chief Justice, not the vice-president, should be president of the Senate. Clearly it’s a serious conflict of interest if the president can pardon himself. Since the Constitution makes it clear that avoiding conflicts-of-interest is important, it makes sense to assume that the Constitution never meant to allow the president to pardon himself.
Who will decide this issue if it ever arises? If Clinton pardons himself, and Starr prosecutes him anyway in a federal court, that judge will have to decide whether the president’s self-pardon is valid. Amazingly, the judge might rule that she isn’t permitted to interpret the meaning of the Constitution in this matter. This is because the Supreme Court has ruled that certain constitutional interpretations are the province of “political” branches, not the judicial branch. (For instance, the Supreme Court refused to comment upon whether the 1993 Senate trial of Judge Walter Nixon was constitutional or not, saying that only the Senate could make that decision.) By this reasoning, only the president can interpret the scope of the presidential pardon. In other words, in such a case, the judge might actually defer to a constitutional interpretation made by the criminal defendant (who happens to be the ex-president).
Explainer thanks Professor Harold Bruff of the University of Colorado Law School, Professors Evan Caminker and Daniel Hays Lowenstein of UCLA Law School, and Louis Fisher of the Congressional Research Service.
Photograph of President Clinton on the Front Porch from Corbis/AFP.