Pardon Me?: The Constitutional Case Against Presidential Self-Pardons

Abstract:     
Can a president pardon himself? President Nixon thought so, and seriously considered it, and the specter of a self-pardon has been raised several times since then. But the answer is unclear.

This note makes the case against the validity of self-pardons, using arguments from the Constitution's history, text, and structure, and from general legal principles.

In brief, the Framers either assumed that self-pardons were invalid or at most failed to consider the issue. The text they wrote does not say anything specific about self-pardons, but their failure to explicitly ban self-pardons cannot be read as a decision to allow them.

Looking at the structure of the Constitution and the government it creates, we find a general distaste for self-dealing and a specific notion of a presidency that is limited in ways that are inconsistent with allowing self-pardons.

Finally, general principles about the rule of law and against self-judging militate strongly in favor of the notion that self-pardons are invalid.

Keywords: pardon, self-pardon, president

Accepted Paper Series