The first (the only?) federal self-pardon

|The Volokh Conspiracy |

Last week, the Philadelphia Inquirer published an op-ed by John Yoo and me. The op-ed argued that President Trump could pardon himself but cautioned that he would pay a heavy political price (we said a self-pardon would constitute "self-immolation"). The basic constitutional claim is that while the Constitution limits pardons in various respects, it does not bar a president from pardoning himself. Moreover, we noted that the Constitution often grants one branch the authority to judge, police, or aggrandize itself.

Part of the op-ed was left on the cutting floor. An earlier draft mentioned that self-pardons are not unprecedented. After he was found in contempt of court, Isaac I. Stevens, governor of the Washington territory, did himself a favor.

That I Isaac I. Stevens Governor of the said Territory by virtue of the authority vested in me as Governor as aforesaid in order that the President of the United States may be fully advised in the premises and his pleasure known thereon, do hereby, respite the said Isaac I. Stevens defendant from execution of said judgment and all proceedings for the enforcement and collection of said fine and costs until the decision of the President of the United States can be made known thereon.

This was a reprieve of the contempt of court until the President of the United States considered the matter. A brief account of the episode is found in my book, Imperial from the Beginning: The Constitution of the Original Executive 108 (2015). A longer account of the episode is found here.

To be sure, this amusing anecdote hardly proves that the Constitution's grant of pardon authority includes the power to pardon oneself. But it is something to consider in conjunction with the glaring absence of a constitutional proviso forbidding self-pardons.

A number of arguments have been made about this episode. Some have suggested that this gubernatorial pardon should not matter for questions of presidential power. Others have suggested that because this episode involves a delegation of pardon authority from Congress to the territorial governor it is somehow inapposite.

The title of the executive should not matter at all. If territorial governors had been styled "territorial presidents" the example would not be more persuasive. What matters is the text granting the authority and the context of that provision. By statute, Congress empowered the governor to "grant pardons and remit fines and forfeitures for offenses against the laws of said Territory, and respites for offenses against the laws of the United States until the decision of the President can be made known thereon." A "respite" is just a reprieve, something that the federal Constitution empowers the President to issue (he "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."). So the governor could do no more than grant reprieves relating to offenses against the federal government. The governor read that language as permitting him to grant a reprieve to himself. In so doing, Governor Stevens adopted what I believe was the best reading of the statute. If a constitution authorizes a "legislature" to "appropriate funds," would anyone deny that the legislature may grant itself a salary and official perks? I rather doubt it.

The delegation point is misguided for a similar reason. The Constitution itself consists of delegations of power to Congress, the President, and the Courts from "We the People of the United States." So the fact that a federal statute delegated authority to the territorial governor of Washington does not distinguish it from the federal Constitution. Again, what matters is the text of the Pardon Clause and the context of its enactment. The text of the Clause and the text of the statute are the same in relevant respects.

The idea that the Constitution authorizes a President to pardon his own crimes is disturbing. But there are many constitutional provisions that have potentially disturbing consequences. Our Constitution is not perfect.