Former Judge Michael Luttig on Why the Pardon Power Does Not Encompass Self-Pardons

A week or so back, I posted on the pardon power, and explained why I do not believe that the President's power "to grant reprieves and pardons for offenses against the United States" does not allow for a self pardon. In a recent op-ed, former federal judge J. Michael Luttig makes a compact and powerful case for this position.

As Judge Luttig notes, some arguments for or against the lawfulness of self pardons are unpersuasive. The 1974 Justice Department memo is unduly conclusory and rests solely on the idea that no one may be a judge in their own case. Likewise, arguments that a self pardon would violate the president's oath to "take care" that the laws are faithfully executed assumes away the question. What, then, are the key arguments? Judge Luttig writes:

So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power – a power in the sovereign that was little known to the Framers, if known at all.

Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity. There, without so much as a hint of a president's power to avoid criminal liability through self-pardon, they provided that even "in Cases of Impeachment," for which the president can only be removed and disqualified from holding high federal office, "the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.

To my mind, the first two of these arguments do all the necessary work, and the third is largely a principled gloss on the point.

An additional argument is that the nature of the power — the power to grant a pardon — provides the power for the President to confer a pardon, much like a gift. Not only does this not make sense if applied to oneself, it also contradicts the longstanding norm that grants to oneself are presumptively unlawful unless expressly authorized–and there's no such authorization here. So, as explained by Professor Eric Muller, the question is not whether the President can pardon himself, but whether the President can grant himself a pardon. Framed in that fashion, it is easier to see why the pardon power does not include self pardons.

Of course not all scholars who have looked at this question reach this same conclusion. Professor John Yoo, for instance, argues here that the pardon power necessarily (if unfortunately) encompasses the power to pardon oneself and one's family. I think Professor Yoo is correct on the latter point. The claims one sees on Twitter and elsewhere that self-interested pardons are invalid or voidable are largely TDS fan fiction, not serious arguments. But I disagree with him on self pardons, and do not think that the founding era materials he cites answer the question. The founders clearly contemplated that pardons could be used for self-interested purposes, but nothing in the relevant materials speaks to the question of a self-pardon, or addresses the point that the very nature of the power is to grant pardons, not simply to pardon.

Given the debate on the validity of self pardons–and the Justice Department's longstanding (if underdeveloped) position that they are invalid–were the President to attempt to pardon himself before he leaves office, he would be taking a big risk. (I wrote more about this here.) On the other hand, were he to resign a few hours early, nothing would get in the way of a President Pence pardoning him.

All the above is only relevant if the President attempts to pardon himself and faces an actual federal investigation or prosecution. Will that happen? I do not know (and nor does anyone else). I am generally against the idea of attempting to prosecute a former President for actions they took as President, as I am against the criminalization of political differences. On the other hand, were there solid evidence of, say, tax fraud, it would be fully appropriate for the federal government to treat a former President much the same as anyone else for which there was credible evidence of such conduct. I also think it would be perfectly appropriate for federal investigators to stay their hands until we see what, if anything, comes of the various New York investigations. Pardons do not reach state crimes, and a state-level investigation or prosecution would not carry the same dangerous political overtones.