I. THE CURIOUS CASE OF PRESIDENTIAL SELF-PARDONS
November and December bring the onset of winter, the promise of Thanksgiving turkeys and hams, the anticipation of gifts at Christmas or Hanukkah, and the issuance of presidential pardons. (1) Every fourth year we also might see a transition in administrations, which can lead to dubious clemency grants. Presidents sometimes misuse their pardon power because they see it as a prerogative of their office--viz., an exclusive and unreviewable power--that they can exercise without relying on the bureaucracy for implementation. (2) Plus, outgoing Presidents, no longer accountable to the electorate and effectively immune from congressional oversight, are freed from any political restraint on their behavior. Some chief executives grant clemency to parties who would never have received it while the political guardrails channeling presidential conduct were still in effect. (3)
When that occurs, such transparently opportunistic abuses of a prerogative--one intended to be used, not selfishly for the President's own personal advancement, but compassionately for others (4)--have justly drawn fire from critics across the political spectrum. (5) Mercy is an ancient and revered trait, (6) and executive clemency is the legal embodiment of mercy, (7) so abuse (8) of the clemency power not only tarnishes that practice but also violates an almost sacred trust. (9) Atop that, by abusing one of the few unreviewable powers of their office, Presidents poison the well for their successors, creating the impression that clemency is a reward for personal friends, political cronies, or the rich and shameless. (10)
A particularly questionable action would be a President's decision to pardon him- or herself for any federal offenses committed while in office. Aside from being "an act of unprecedented chutzpah," (11) the practice is treacherous as a practical matter because it implies that the President might have committed a crime, possibly forever making him a pariah within his political party and in the eyes of history. (12) It is also dubious as a legal matter because there is no clear answer whether a self-pardon is lawful. No President has yet pardoned himself, and for most of our history, the issue of whether one may do so was not a remotely significant public policy issue. In fact, it would not even have been a serious hypothetical on a law school final exam.
The issue could not have arisen in pre-Revolutionary England because, under the common law, the crown could do no wrong. (13) It does not appear to have been an issue for royal governors before the Revolution. (14) The Articles of Confederation did not create an office of chief executive, so the issue also could not have surfaced during the nation's early days. (15) There was limited discussion of any aspect of the pardon power at the Constitutional Convention of 1787, and no one raised this precise issue. (16) Finally, no one asked this question during the state ratifying conventions. (17)
The issue did not become a serious possibility until Richard Nixon was in his second term as President. The...