Many of the issues swirling around the Trump administration seem to have a legal dimension, which can provide an interesting framework for judging them. So what are the legal restrictions on the president’s actions? One really important one is the concept of pardon power. To pardon someone is a legal recognition of a change of mind — a change in actions — and a promise of forgiveness.
Does the president still have the power to pardon himself for some or all crimes in exchange for a promise that he will refrain from some future course of action that falls short of the full pardon? The president still has the power to pardon himself to the extent that he has violated the law. According to Charles L. Ogletree, a Harvard Law professor and professor of law at Harvard Law School from 1962 to 1988, the president’s pardon power is either unlimited, or rather not limited by any one constitutional clause.
“Pardon power comes from our Constitution and is indivisible,” said Ogletree. “The president can pardon himself for any crime he possibly can.”
At Harvard Law School, the most robust debate is about whether the president is entitled to the pardon power “because he has been a senator.” Ogletree has said it is not clear whether the Constitution requires the president to take the advice of a senator before exercising his pardon power. (The law explicitly permits the president to pardon himself, but no senator has officially taken the proposition that the president is constitutionally entitled to a pardon without the advice of a senator. Some say that the Supreme Court’s 1979 ruling in Hamdan is the best guide here.)
Is the Constitution strong enough to insist that the president take a “sunset clause” or time frame from which to view the exercise of his pardon power? Only the other branches can give the president that advice. The Constitution (not only the 18th-century founders) set up a system of checks and balances within the executive branch.
The idea that the Constitution imposes a bright-line rule on the president about the scope of his pardon power is incompatible with the idea that there is a “commons” beyond the president’s constitutional bounds. Every branch of government must be vigilant, but at the same time the executive must be an equal among the branches and participate in the Constitution’s rule of law. If the Constitution places limits on the president’s pardon power, then those limits must apply to everyone equally. By not exempting the president from the accountability that comes with his duty to live up to the law, the president is impairing the rule of law.
The only reason that such a bright-line rule exists is that the Constitution insists that the president be accountable. Every other power in the Constitution is tied to some accountability other than the accountability that comes with election. If the Constitution does not regard the president as an equal to anyone else, then it necessarily needs to distinguish between those who are below the level of president and those who are above it. The framers purposefully divided and conspired with one president from another. In doing so, they substantially reduced the possibility of committing an impeachable offense. (They considered it a grave mistake to use the distinction between vice president and president as a way to invalidate civil rights movements, which requires a president to sit down with the House Judiciary Committee and answer questions.)
The president is still an equal before the law. The person closest to him who can challenge his authority is his deputy. Then there are his Cabinet secretaries and his surrogates within the Justice Department and other government bodies that might also be able to oppose him. But the Constitution does not decide the comparison between the president and the rest of us — and the argument against excessive clemency for the president should not begin and end at that analysis.