Paul Rosenzweig is a senior fellow at the R Street Institute, a policy research organization and a former Whitewater prosecutor under Kenneth W. Starr. Justin Florence is the legal director of Protect Democracy and a former White House associate counsel in the Obama administration.
With a plea deal announced Friday in the second trial of former Trump campaign manager Paul Manafort, the possibility that President Trump will issue a pardon to prevent Manafort's future cooperation with special counsel Robert S. Mueller III warrants fresh attention.
Trump's supportive tweet about Manafort after his conviction in August on eight felony fraud counts, praising him for not cooperating with prosecutors, was widely interpreted as a hint of future presidential leniency. Trump has insisted on his "absolute" power to pardon even himself, and his lawyers in a secret January memo to Mueller asserted the president's complete control over federal investigations as the nation's chief law enforcement officer.
Trump and his team have tried to lay the groundwork for pardons to protect him from criminal charges. But can he use the pardon power in that way? Not in our reading of the law. A self-pardon, or a pardon that is self-protective and serves the same purpose as a self-pardon, would be an abuse of power that violates the Constitution and, as such, could warrant impeachment.
If the president can use the pardon power to protect himself from prosecution, it would effectively transform him into an authoritarian ruler, incapable of being limited by law or any other branches of government. In constitutional terms, using the pardon power in this way would appear to violate Article II, which requires the president to "take Care that the Laws be faithfully executed." To honor his oath of office, in other words, the president must act faithfully to "preserve, protect and defend the Constitution" to the best of his ability.
A president's first obligation is to the Constitution and its faithful enforcement — not to himself. He may not act, or fail to act, for corrupt or self-interested reasons. And he must enforce the laws Congress has enacted, not subvert those laws to his own interests or those of his cronies.
The president's powers — even seemingly unfettered ones, such as the power of the pardon — must be exercised within the parameters of other legal requirements derived from the Constitution or enacted by statute. To see this most clearly, consider a diverse group of people: the class of people who violated the Selective Service laws during the Vietnam War by burning their draft cards, fleeing to Canada, or through other, nonviolent acts of protest. President Jimmy Carter used the pardon power to grant clemency to everyone who had broken these laws in protesting the war — a merciful gesture by Carter, whatever your view on the merits of the conflict.
But what if, say, Carter had granted the same clemency but limited it to Caucasians and excluded all people of color. Or if he afforded clemency only to Catholics, but not to Protestants, Jews or Muslims. Americans would surely say that the pardon power could not be used in that way — and that using a lawful power to violate another law (in this case, the right to equal protection) would render the pardon itself illegitimate and unlawful.
The principle would also apply to self-protective pardons; the power itself cannot reasonably be read to allow its use to further violations of other laws — in Trump's case, that might mean laws against corruption, obstruction and conspiracy.
The Office of Legal Counsel, which sits in the Justice Department and provides the president with opinions on executive actions, has the view that the president cannot self-pardon. As part of the executive branch, the OLC is very much in favor of executive power.
But on the issue of self-pardons, the OLC has been more restrained. In a 1974 opinion, written four days before President Richard M. Nixon resigned, the head of OLC wrote that the president cannot pardon himself, under "the fundamental rule that no one may be a judge in his own case." That is a rare example of the executive branch articulating a limit on its own power, and it shows why a president's use of the pardon power for others to obstruct an investigation and to immunize himself from liability would be legally suspect.
The OLC's opinions are binding only for subordinates in the executive branch. A president is free to ignore them, as some presidents have. But if the president were to issue a self-protective pardon, as in the case of Manafort, that would be a novel, untested act that would run counter to the precept that in our country, nobody is above the law.