There’s at least one big hole in the Constitution when it comes to the president’s power: He can pardon himself.
“He shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” the founders wrote. Simple, straightforward, easy to understand. Maybe the revolutionary generation didn’t give much thought to the possibility that a president would find it necessary or advisable to pardon himself. The Federalist Papers: No. 74, which deals with the powers of the chief executive to grant leniency, doesn’t even contemplate a self-pardon.
But with a special counsel and two congressional panels investigating President Donald Trump - and with not too much time having passed since President Bill Clinton was impeached by the House or since Richard Nixon was pardoned by successor Gerald Ford following his resignation - it’s worth considering whether the Constitution is too lenient in availing the president of self-immunization.
I believe it is.
One could envision a scenario in which a legally embattled president, surrounded by appointees who find themselves in danger of conviction or imprisonment, issues pardons by the ream, culminating in a get-out-of-jail-free card with his own name on it.
The idea that a president - one who has been accused of committing serious crimes - could sit in sole judgment of himself is an affront to the basic rule of law in a civil society. If a president judges himself, then he is above the law. In this republic, no one should be in such an elevated position.
Some legal scholars have argued that federal courts might constrain the president’s pardon power by invoking other principles of American law. But a Slate explainer during the Clinton presidency concluded that a federal judge “might rule that she isn’t permitted to interpret the meaning of the Constitution in this matter” because the Supreme Court has found that some matters fall under the authority of Congress and the executive branch.
“By this reasoning, only the president can interpret the scope of the presidential pardon,” the article concluded.
It doesn’t take an Ivy League law degree to see the problem - or the easy solution.
Maybe presidents of a different age would view the humiliation of self-pardoning as a worse punishment that trial, conviction or imprisonment. But I doubt that’s the case now.
In the recent past, lawmakers - including then-Rep. Barney Frank, D-Mass. and Rep. Jerrold Nadler, D-N.Y. - have proposed amending the Constitution to limit the president’s pardoning power. In those cases, the focus has been on preventing the kind of lame-duck pardons Bill Clinton issued to the embarrassment of fellow Democrats or the prospect of President George W. Bush granting reprieve to his appointees.
I don’t agree with either approach, nor do I agree with a proposal by Rep. Steve Cohen, D-Tenn., from a few years ago that would have amended the Constitution to require that two-thirds of the justices on the Supreme Court approve of a presidential pardon for it to take effect.
The president should have the authority to spare individuals who could not win the mercy of six Supreme Court justices. The president is also fit to sit in judgment of the aides who may run afoul of the law while serving his administration. And it is beyond me why just one of the president’s powers would be curtailed during the lame-duck period between the election and swearing-in of his successor. We should either have the lame-duck months at the end of a presidency or not.
A no-brainer But prohibiting a president from pardoning himself is an absolute no-brainer.
Of course, it would be unfair, partisan and - for those reasons - unsuccessful for Congress to try to change the rules during the current presidency. But there’s no good reason that Democrats and Republicans couldn’t unite around a simple constitutional amendment with an effective date of Jan. 20, 2021, or Jan. 20, 2025. It’s not like anything else is moving through the Capitol on a fast track right now.
Hell, it would be smart for Trump to endorse such a measure. It’s an old political trick to offer unrelated political reforms to distract from allegations of misconduct. This would, necessarily, present no harm to him personally. But in the interest of “making America great again” in “unprecedented fashion,” a nonpartisan, ethics-minded update to the Constitution makes sense.
Congress should act quickly to send an amendment to the states for ratification.
Roll Call columnist Jonathan Allen is a co-author of “Shattered: Inside Hillary Clinton’s Doomed Campaign.”