The Beheading of a King
It was the 1640s.
There was plague. The Ottoman Empire was very much in power in their tidy corner of the globe. An estimated 300,000 people die when the Ming Dynasty quells a rebellion by breaching the dams holding back the Yellow River.
The English sped through two Civil Wars. These were so bloody and disruptive, the parliament closed all theaters in London, thus ending the English Renaissance Theatre. You might say that this era was a tale told by an idiot, full of sound and fury, signifying nothing.
Yet, amid the turmoil, Sir Isaac Newton is born; Milton and Descartes write. Rembrandt paints.
During the reign of King Charles I, there were many interesting trials involving impeachment and other high crimes and misdemeanors. There was the trial of the Essex Witches, the impeachment of the Archbishop of Canterbury for treason and that of the Lord Mayor of London.
The most interesting trial of them all was the trial of the King.
Charles Stuart was brought to trial by the House of Commons, calling itself the supreme court, and it charged the sovereign with murder and treason. For days in a row, the King was brought into court and asked to admit or deny the accusations against him. Instead of doing so, he questioned the authority of the court to judge him, a king. After hearing the same argument over and over from the stubborn monarch, this little bit was said by the Lord President of the Court:
Sir, I must interrupt you, which I would not do, but that what you do is not agreeable to the proceedings of any court of justice: You are about to enter into argument … concerning the Authority of this Court, before whom you appear as a Prisoner….
(emphasis added). Can you hear the gasps of the gallery? The King never did submit to the jurisdiction of the court. He also never attempted to pardon himself. After sentencing, he was beheaded three days later.
The Beheading of Another King
On March 4, 1793, in the city of Philadelphia, George Washington is sworn in as the first two-term president of the United States. The month prior to that, the innards of the first wife of Captain Burton of Manchester, Vermont were placed on the blacksmith forge of Jacob Mead so that those items could be burned, and in that way, ward off “the Demon Vampire who it was believed was still sucking the blood of the then living wife of Captain Burton.”
The month before that, on January 21, 1793, the French people removed the head of their erstwhile monarch, King Louis XVI. Shortly after that, his wife Marie Antoinette suffered the same fate. Her court painter, Élisabeth Louise Vigée (pictured below), fled France and became an established artist in exile.
During his trial, King Louis XVI retained a very good attorney to state his case for acquittal. This fellow argued that the sovereign was immune from prosecution because of the terms of the French Constitution of 1791. In reading that document myself, I find it rather ambiguous on that point:
2. The person of the King is inviolable and sacred; his only title is King of the French.
3. There is no authority in France superior to that of the law; the King reigns only thereby, and only in the name of the law may he exact obedience.
There is no mention of the power to pardon or commute sentences in the Constitution of 1791, but it had been a longstanding tradition and could’ve been brought up in that respect during the trial. King Louis XVI did not argue the right of self-pardon. He was soon beheaded.
Which brings us to the present.
Can the Orange Traitor Fuckpudding Declare Himself Pardoned?
The short answer is yes. He can declare anything. In fact, he’s already claimed to have that authority on Twitter. This was how he carefully drafted his learned interpretation of this important provision of the United States Constitution:
I believe that the “numerous legal scholars” mentioned is a reference to the law firm of Miller, Barron, Dennison, Trump & Trump, LLC.
The United States Constitution
The Constitution does provide for a pardon power, and it is found in Article 2, Section 2, where it states as follows:
“ … and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
As you can see, the Constitution does not mention self-pardons (or masturbation for that matter), although they both could occur and lead to a very sticky situation.
My Interpretation of the Pardon Powers Granted Under the Constitution
The first order of business is to look at the plain meaning of the provision. Is the provision clear and unambiguous if applied to self-pardons? At first blush, it appears so. Basically, it seems to read that, other than when dealing with impeachment, a president has unlimited pardon power involving violations of federal laws.
But looks can be deceiving.
A. Use of the Verb to Grant.
The Framers used the verb “to Grant” in the provision. I quickly latched onto that because, at least in my mind, the verb implies (and perhaps requires) somebody else—a second party to a transaction. Also, it generally implies a greater body giving something to a lesser body, such as a King granting a pardon, or a university grant of a scholarship. It is—at least in part—our American/English way to express Noblesse oblige, the French expression that nobility has certain social responsibilities.
Dictionaries bear this out.
From Merriam-Webster to Collins to Cambridge to Oxford, the term implicates a second party. No definition of “grant” implies a gift to one’s self. This is how the Oxford definition reads:
B. Precedent.
How have other courts or regulatory bodies or law reviews interpreted the statute? There are hierarchies of precedent under federal law with a Supreme Court case at the top, federal appeals and then trial courts. If they haven’t construed a certain application of the statute, then you can look elsewhere (although “elsewhere” isn’t binding on you like a Supreme Court case would be).
In this instance, there are no federal cases dealing with the issue. The only germane federal precedent is a 1974 Department of Justice memo, which indicated that a self-pardon was not tenable because a person cannot be his or her own judge. Remember, this was Nixon’s DOJ that wrote this memo, and two weeks later, he resigned and accepted a pardon from then-President Ford.
“Presidents Clinton and George H.W. Bush were each under investigation by a special prosecutor as their terms drew to a close, but neither chose to pardon himself.”
So, although this may not be binding precedent, it is about the best non-binding precedent you can have.
C. Intent of the Framers.
Did the Framers discuss any type of personal application of the pardon powers? Not explicitly. They did include the proviso that it couldn’t be used for impeachments. However, what the Founders were discussing at the time was a cabal of other statutory officers being impeached who the president wouldn’t be allowed to pardon because he might be a co-conspirator. (I do think this is the best argument for a personal pardon power).
D. How Does the Provision Fit Within the Regulatory Framework?
In this area, we must consider impeachment as well as sovereign immunity. The Framers understood that under the old law (what lawyers call the common law) a king could not be sued. He had sovereign immunity. This isn’t quite the way it turned out in America, but that’s how the Dead Presidents looked at it.
Additionally, even if you consider use of “impeachment” in the pardon provision, what about the possibility of a president issuing a secret pardon for him- or herself while committing crimes that were not discovered until after he or she was out of office?
A secret pocket pardon.
Finally, the issue should be viewed through the president’s constitutional duty to “take Care that the Laws be faithfully executed.” If the president has committed a crime and wants to pardon himself, he has not faithfully executed the law.
He’s made a mockery of it.
E. The Common Law.
When you try to interpret statutes or the Constitution or even regulations, sometimes the wording is ambiguous and you have to look at the state of the law before the new provision was written. That’s why I started this discussion with the information about headless nobility.
The Framers were well aware of a King or Queen’s ability to pardon their subjects. They were also aware that there had never been a self-pardon in history. Why? Because other than King Charles I and Louis XVI, they didn’t have to pardon themselves because they were kings or queens!
And even Charles and Louis didn’t try to pardon themselves.
WHAT THOSE TV LAWYERS SAY
At the time Trump tweeted his absolute right to self-pardon back in 2018, a number of our favorite TV and Twitter lawyers opined on the subject. These are from a CNBC article the next day, so take them with a grain of salt. The lawyers did not have much time to study the subject:
I believe that Professor Greene is right to hang his hat on “implicit.” It is implicit in the verb “to grant,” and it is implicit based upon common law and the abhorrent nature of a person being their own judge.
I did my own independent analysis before running across this article on CNBC. I just wish to god that there had been another commentator who I agreed with more. Not a big fan of Richard Painter, but, at least in my mind, he is exactly right.
True story: I have disliked Professor Tushnet since my first year as a law student. There is one other legal commentator at the link who thinks the president has the power to self-pardon. Three or four others not shown in this diary believe he does not.
This is more emotional than logical, but it arrives at the correct destination.