Trump Is Wrong. The Pardon Power is Not ‘Absolute.’
And a president can’t just pardon himself.
DONALD TRUMP THINKS EXECUTIVE CLEMENCY is a “complete,” “absolute,” king-like power that a president can wave as a magic wand over anyone—including himself—to absolve them of any legal accountability for their actions. Not true.
As president, Trump supercharged the pardon power as a tool for self-dealing, and if re-elected, he would almost certainly escalate his abuses.
According to a Washington Post investigation of all pardons and commutations during his tenure: “Never before had a president used his constitutional clemency powers to free or forgive so many people who could be useful to his future political efforts.” Of particular note was the unprecedented number of pardons Trump gave to white-collar criminals who would go on to provide him with political and financial support. If he wins another term, he has promised to pardon violent January 6th rioters and can be expected to test his ability to pardon himself.
Some defenders of Trump’s thinking maintain that while abuses may be unfortunate, it is nearly impossible to consider any of them unconstitutional. They point out that the Constitution’s Pardon Clause does not specify a long list of “off-limits” pardons, like a self-pardon. But the Pardon Clause, like any other clause, cannot be read in isolation from the rest of the document. The Constitution wasn’t constructed to be pulled apart and interpreted à la carte.
Like any other power vested in any branch of government, the pardon power is constrained by the rest of the Constitution. The Supreme Court has already said so—multiple times. In Burdick v. United States, for instance, the Supreme Court held that President Woodrow Wilson could not pardon a newspaper editor as a means of compelling his testimony to a grand jury, thus abrogating his right to remain silent and avoid self-incrimination under the Fifth Amendment. The Court held “that the power of the President under the Constitution to grant pardons and the [Fifth Amendment] right of a witness must be kept in accommodation.” That is, the pardon power could not run roughshod over another part of the Constitution.
As the Supreme Court has reiterated elsewhere: The Constitution grants the president the “power to commute sentences on conditions which do not in themselves offend the Constitution.”
To use another constitutional analogy, the Commerce Clause vests Congress with an expansive authority to regulate interstate commerce. That does not, however, give Congress the right to regulate commerce in ways that violate other parts of the Constitution. If Congress moved to outlaw the mailing of certain newspapers across state lines, that law would violate the First Amendment. Likewise, a president cannot use the pardon power in ways that defy other constitutional provisions and principles.
A NEW REPORT FROM OUR ORGANIZATION, Protect Democracy, assesses which kinds of pardons would, in fact, “offend the Constitution” and therefore be impermissible. There are at least four, including pardons that:
place the president above the law, either through a self-pardon or a self-protective pardon (that is, a pardon that has the intent and effect of impeding an investigation into a president or his interests and would thus amount to a self-pardon);
undermine individual liberties protected by the Bill of Rights or prevent courts from enforcing orders protecting those rights;
violate generally applicable federal criminal statutes, including obstruction of justice and bribery laws; and those that
license lawbreaking on a president’s behalf, particularly when his own interests are implicated.
While many of these abuses of power remained purely hypothetical before Trump, his campaign promises now make them urgent issues.
Trump’s promise to pardon January 6th rioters on “Day One” of a second term—including violent convicts whom he describes as “patriots” and “hostages”—is now central to his 2024 presidential campaign. According to evidence collected by the Justice Department, by promising pardons, Trump is “publicly signaling that the law does not apply to those who act at his urging regardless of the legality of their actions.”
Trump would be using the pardon power not for the traditional purpose of clemency—synonymous with mercy—but for impunity for future lawbreaking on his behalf. Sanctioning lawbreaking, particularly when the president’s interests are involved—as when the president himself is criminally accused of engaging in the same insurrection for which he is now promising pardons—would run afoul of the president’s Article II responsibility to faithfully execute the law.
IN A SECOND TERM, Trump would be unlikely to stop at placing his loyalists beyond the reach of the criminal justice system. He is the only former president in history to be charged with criminal wrongdoing while being nominated by one of our country’s two major political parties to be president again. The possibility of Trump attempting a self-pardon is real.1
Federal courts, including the Supreme Court, have consistently upheld the principle that “no man can be a judge in his own case,” calling it a “mainstay of our system of government.” When President Nixon contemplated a self-pardon, his own Justice Department invoked this very principle to shut down the idea. A self-pardon would constitute an egregious violation of that core constitutional principle, among others.
To protect the Constitution from the violations a self-pardon would inflict on it, the judiciary would be right to intervene. The Supreme Court has established that limitations to the pardon power may be “found in the Constitution,” and federal courts have long adjudicated disputes over the constitutionality of certain exercises of the pardon power.
Congress, too, can exercise its own checks. The first article of impeachment against Richard Nixon accused the president of “endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony”—i.e., suborning perjury by dangling pardons.
The executive branch also has a role to play in policing pardons. In 2001, federal prosecutors empaneled a grand jury to investigate a pardon by President Bill Clinton that appeared to be a quid pro quo with a donor in potential violation of federal bribery law.
The courts, Congress, and the Department of Justice took these actions in line with their constitutional responsibilities to check a presidential power when it threatened to violate the Constitution or the law. In a second Trump administration, the pardon power will not constrain itself. It will fall upon members of these institutions—those who respect their oaths to support and defend the Constitution—to do so again.
Grant Tudor and Amanda Carpenter work for Protect Democracy, where Tudor is a policy advocate and Carpenter is an editor.
It is worth also noting that Trump’s misunderstanding of the pardon power may stem from a deeper misunderstanding. His claim while he was president that he had an “absolute right” to pardon himself is incorrect on its face: No one has a right to pardon anyone; the president has the power to pardon some people for some offenses in some situations. Understanding the pardon power as an exercise of government authority (hence why no one calls it the ‘pardon right’) is an element of understanding why Trump cannot pardon himself: Unlike rights, powers must be used to further the general welfare, as a plain reading of the Faithful Execution Clauses would suggest. According to one federal court, this includes the pardon power, which is not “limitless.” Instead, a president “must always exercise it in the public interest.”
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