Today, I begin with a simple question. Is the presidential Pardon Power absolute? The answer, of course, is, of course not. Why? Because the word ‘absolute’ does not appear in the US Constitution. If the Founders wanted to make any presidential power absolute, including the Pardon Power, they certainly knew of and could have used the word, you know, as in absolute power corrupts absolutely. You get the picture – it’s a non-starter from the word go.
Let’s take a look at the actual words of Article II, Section 2 of the US Constitution:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” – Emphasis added.
When discussing Presidential Powers, it is best to remember that unlike Congress, whose powers are enumerated, meaning they are either included in the Constitution or they don’t exist, the President’s powers are not strictly enumerated and are subject to inference, limited in theory only by the parameters of the Office’s overall textual mission as contained in Article II Section 3 of the US Constitution:
“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”-Emphasis Added.
The “Take Care Clause” requires the President to enforce all constitutionally valid Acts of Congress. Between these two clauses, we now have virtually all of the express directives within the Constitution that could be of use in divining the breadth and scope of the Pardon Power. That’s it. Really.
As a starting point for inferring Presidential Power, the powers are generally separated into two categories. Domestic and Foreign. Eschewing the foreign component, Domestically, we know from the Preamble that the main mission of the Federal government, including the President, is to “insure domestic tranquility.”
So, for those of you keeping a scorecard, we now have as a baseline for presidential power, something along the lines of “to insure domestic tranquility, the president must take Care that the Laws (of the land) be faithfully executed.” Now comes the fun part. Let’s do a little inferring in real time, shall we?
If it is so, and it is, that we are a nation of laws, and that no singular person is above the law, how can it be inferred from the Constitution that the President, through the Pardon Power, may “tack on” to the end of Article II, Section 2.?, That, in and of itself, places a clear exception, that being matters involving impeachment, is allowed to “faithfully” place himself above the law? In what way would excluding himself from the law through the use of the Pardon Power to pardon himself help, in any way, to ensure domestic tranquility?
Would you sleep better knowing the President, this President, can undertake whatever act or actions, commit any crime or crimes and face no penalty for both unconstitutional and illegal actions? Even though these actions are clearly impeachable and are, therefore, by their very nature considered against the interest of the people? Against the constitution, laws, and interests of the United States? Are we seriously contemplating going back to a time where the King could do no wrong? No, we’re not. We settled all that back in 1776. Trump can’t pardon himself. For if he does, and we let him get away with it, we no longer live in a democracy, or in any place I would recognize as America. And that’s one absolute we can all be sure of.
Did you get your fill of Phil?