"No one may be a judge in his own case": The president can't pardon himself, says 1974 DOJ memo

A blast from the Nixonian past that’s making the rounds today thanks to, among other people, Joe Scarborough. Per CBS, this is indeed the most recent pronouncement by the DOJ’s Office of Legal Counsel on the topic of presidential self-pardons. Not a great sign that we’re reaching back to the Watergate era for precedents on presidential power to derail criminal investigations, but oh well.

The memo’s only three pages long and well worth reading. Most of it is spent on puzzling over whether Congress can constitutionally legislate a pardon for the president. The author, Mary Lawton, seems to point towards yes on the theory that if it’s true that the president doesn’t have the power to pardon himself then Congress pardoning him wouldn’t interfere with any of his Article II powers. Here’s a fun little paragraph tucked away inside, though:

Good lord. That’s more dubious than a straightforward self-pardon would be. The 25th Amendment says that the president can willingly transfer his powers to the vice president *or* can have them seized by the vice president and a majority of the cabinet against his will — but only if he’s “unable to discharge the powers and duties of his office.” It’s designed for cases in which the president is incapacitated, in other words, as Woodrow Wilson was for a long stretch of his own presidency. The left likes to bring up the 25th Amendment whenever Trump says or does something especially kooky as a break-glass-in-case-of-emergency solution to ousting him from office, but even they at least try to make the case that Trump is “incapacitated” (i.e. nuts) when citing it. This DOJ memo seems to imagine the president and vice president conspiring to use the 25th Amendment for purely political purposes, with no hint of incapacity. If the prez wants a pardon, he simply calls a 25th Amendment audible, hands the ball to the VP, the VP rubber-stamps the pardon, and then the ball is flipped back to POTUS.

Which seems way more corrupt and conspiratorial than a straightforward “I’m above the law” self-pardon by the president.

That’s not the only poor reasoning in the memo. Lawton’s case against the power of self-pardon is brief, stark, and memorable: The president can’t give himself a get-out-of-jail-free card “under the fundamental rule that no one may be a judge in his own case.” That’s satisfying as a matter of what’s intuitively just, but everyone who’s read the Constitution can rattle off examples, starting with the slavery provisions, in which what’s legal and what’s intuitively just don’t mesh. Nor is the principle that no one can be a judge in his own case explicitly stated anywhere. The Founders specified a limit on the president’s power — he can’t pardon in matters of impeachment — but they said nothing about limits on his power with respect to any underlying criminal offense. If they had wanted to tie his hands with respect to any form of self-pardon, that would have been easy enough to do.

Even Lawton’s formulation, memorable though it is, doesn’t work. The pardon power isn’t about being a “judge” in anyone’s case, your own or otherwise. Ideally it’s used in cases where the recipient has already been judged guilty (or indicted). It’s an act of mercy, not an adjudication. Why wouldn’t it suffice in a case of self-pardon to let the president face the same check he faces with all other pardons, namely, the wrath of the voters? If he abuses his power, he’ll be thrown out in the next election. Er, unless he pardons himself in his second term, when he can’t run again. The Founders didn’t contemplate term limits!

The best argument against letting the president pardon himself isn’t retrospective, objecting to him being a “judge in his own case.” It’s prospective: If he gets away with absolving himself of crimes he committed in the past, he’ll have no reason not to commit crimes going forward. That get-out-of-jail-free card will always be in his back pocket, ready to be slapped onto the table in case any troublesome special counsel comes sniffing around. In fact, theoretically Barack Obama could have used it too. One of the ironies of Team Trump’s super strong-form arguments about de facto executive immunity this weekend is that if you take them seriously they undercut the legal force of their arguments against Obama’s handling of Russiagate. If the president can do whatever he wants with respect to the DOJ, can’t properly be prosecuted for it, and can pardon himself on his way out the door so that he can’t be indicted as a private citizen, then Obama’s only legal with Russiagate was forgetting to issue that self-pardon. He was perfectly within his rights to abuse the DOJ to persecute his political enemies. He’s the president. He is the law.

Here’s Sarah Sanders being asked if Trump considers himself to be above the law and dutifully answering no. But in practice, he does. If he can’t be indicted as president and also can’t be indicted as a private citizen so long as he issues himself a pardon then, yes, he’s above the law. He can’t be touched. Not by the federal government, at least.

Jazz Shaw Jul 06, 2022 9:01 AM ET