The Kingly Pardon Power

Donald Trump is wrong to say that, as President, he has 'an absolute right' to pardon himself. That is doubly wrong. First, it is a power pertaining to a government office and not a right that is being described. Second, the power is not absolute. It is limited to cases that are not matters of impeachment.

Those are technicalities, of course, though people like me think technicalities are sometimes quite important when we are describing limits on the power of government. Trump's basic point, allowing for his penchant for vague language, is correct. The President can pardon any Federal crime, even if the crime is merely an accusation or suspicion rather than a proven fact. Here's the Constitution's language:
...he [i.e. the President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
There is one "except," and no other limits. It doesn't say "unless it's himself accused." It doesn't say "unless it's in his self-interest." It doesn't say anything other than what it does in fact say.

This is a power that kings used to have, and it is a tremendous power, so it's reasonable to fear that the use of it threatens to establish a king rather than a President. There are nevertheless checks on this power. If the Congress doesn't think the President is acting responsibly, they can impeach him and remove him from office. He cannot pardon himself in this case because it falls under the clear exception for impeachment cases. (The same is true if they should impeach and remove his chosen officials within the Executive branch, or the Judiciary).

If Congress does not act to do this, the People of the United States may vote to replace them. Such elections are held every two years for the entire House of Representatives, so that impeachment if not removal can be effected relatively swiftly if needed. Senators might resist the popular will, but facing the specter of a massive electoral wave in the House demanding impeachment, they are likely to act on removal.

If the People do not think that the President's use of the power of the pardon justifies such a wave to force the removal of the President, well, they are in effect signing off on the action. Under our system the People really are the sovereign that the old kings used to claim to be. They are the ones who have the final authority to approve the President's actions or not. If they do not demand his ouster, and especially if they should go on to re-elect him, all of our forms have been satisfied. The true sovereign has blessed the action.

This is a quality of democracy that most philosophers dislike very much. It has rare defenders, including British Law Lord Patrick Devlin in the last century. But in general philosophers are uncomfortable the the idea that clear violations of their preferred justice principle should go unpunished simply because the violations are popular, or simply because the violator is popular. Philosophers are of course free to make this argument to the people to try to convince them of it, but that seems like a poor solution to many of them. They know better than the common rabble, after all: what otherwise was the point of all those years of study?

The counterargument is pragmatic, and indeed the same kind of counterargument that capitalism raises in its defense against charges of injustice or of promoting inequality. Perhaps so, says the capitalist, but look how much better off we all are under this system! The alternative systems likewise claim to be organized by those who understand better, but they lead inevitably to poverty and frequently to ruin. Capitalism is wiser even when it violates justice principles, because it makes the trade based on local information about what is most needed right there by the people who really need it. It may sometimes make trades that violate principles, but the overall effect is a rising tide that lifts all boats. (And indeed, as much as capitalist globalization has done to disrupt America, it has raised boats around the world: global poverty is at an all time low.)

Similarly, here, the small-d democrat is inclined to accept the right (not power, but right) of the people to make their own decisions about what to support politically. They may sometimes make trades that the philosopher would not like and would not support, but they do it for reasons of their own that are obvious to them locally and opaque to those further away. These reasons are said to be 'racism' or 'bigotry' or 'hate,' but in fact they are simply opaque: you don't know because you aren't there, enmeshed in the life of the person making the choice. The accusation is an act of imagination, not a grasping of knowledge. That it is an act of imagination that suits one's own political interests, because it empowers elites like one's self instead of small men and women in the countryside, is reason for a true philosopher to be suspicious of it.

So it turns out that this kingly power is rooted in the plainest democracy, at least here in America. The President certainly does have the power to pardon any Federal crime with only one class of exceptions. If he does this badly and for wrong reasons, first our representatives and then we ourselves must punish it. Or, if we do not, then we must accept the responsibility for the choice. The king, after all, is ourselves.


Andy McCarthy makes an allied argument.
More significantly, as I argued in Faithless Execution, we’ve become such a litigious society we fail to recognize that the Constitution mainly relies on political checks, not judicial ones. The idea is to promote liberty by putting the most important decisions in the hands of representatives who answer to the voters, not in the hands of judges who are not accountable to the public.
He goes on to criticize talk of self-pardon on other grounds.


Apparently Nixon-era Federal lawyers came to the opposite conclusion, on the grounds that 'no one can be a judge in his own case.' But I think the above shows that such reasoning isn't adequate; no President does get to be the judge, finally, in these matters. By nature it appeals to the People, who are rightly sovereign.

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