The Pardon Power May Be Broad, But that Does Not Mean a Self-Pardon Would Be Legit
Last week, a lame-duck President pardoned a turkey, as is traditional for the Thanksgiving holiday, and then pardoned a former agent of Turkey, which is not. Could the most untraditional of pardons—a self-pardon—be next? If so, then what?
Article II, Section 2 of 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 power, the pardon power, is among the broadest and least constrained of presidential powers. It has been described as “plenary,” and faces no real limits other than those indicated in the text: It only applies to federal crimes (“offenses against the United States”) and may not be used to overturn an impeachment conviction. Further, pardons must be for acts already committed–that is, the “offense” must have occurred–but it need not have been investigated or previously disclosed, let alone charged. (For those interested, here’s a good CRS report on the pardon power.)
The President may offer a pardon to whomever the President wants, and for whatever reason. This is one reason the inclusion of a pardon power was controversial at the founding, and why some Anti-Federalists, such as George Mason, were upset about it (and why some folks, like my co-blogger Keith Whittington have urged its reform). Fortunately, throughout the nation’s history the pardon power is relatively rarely used to excuse corruption or protect a President’s cronies. Those few instances–such as President Clinton’s pardon of Marc Rich–are controversial precisely because they have been the exception, rather than the rule.
Some have urged Congress to enact legislation to curb the pardon power, but I doubt such legislation would be constitutional. The pardon power is the President’s alone, and Congress lacks the power to constrain it. Congress might have the authority to require federal agencies that assist with the administration and execution of pardons and clemency to disclose information, but it is unlikely such legislative oversight could reach the President himself. As the Supreme Court made clear in Trump v. Mazars, Congress does not have free-standing authority to investigate the President for potential wrong-doing, and in the abs
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