President Trump asserts he has an “absolute right to pardon himself.” No president has ever pardoned himself, though the right of the president to issue pardons for federal crimes is found in the Constitution.
The Constitution is a broad statement of principles about the federal government and the separation of powers among the three branches – Congress, the president and the courts. It does not state who the president may pardon.
How can Trump claim he has such a right? He obviously knows that he has pardoning power and believes the Constitution does not limit who may be pardoned, so it must include him.
Here’s the answer. The document was written by a group of people who arrived at a common understanding of how the U.S. government would work. They assumed their successors would apply the document, sharing their assumptions. It turned out they were right for much of the nation’s history.
There was something else. In order to convince New York to ratify the Constitution, three people, led by Alexander Hamilton, wrote a series of articles called “The Federalist.” In them, they explained how they thought the government would work, trying to convince readers that it would not be a threat to them.
One of the articles discussed the presidential pardon power. Showing how careful the president would be in issuing pardons, Hamilton explained: “The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution….”
This sentence leaves no doubt that a pardon is to be issued carefully by the president for “a fellow creature,” not to himself. That was the usual practice in other countries. But Trump has taken advantage of the lack of a specific statement in the Constitution to claim he could enjoy a right not originally meant to be his.
The Maine Constitution is similarly general, allowing a pardon by the governor “after conviction.” The Legislature may impose conditions on the pardoning power. That may also be possible under the U.S. Constitution, assuring that the right to pardon, like all other rights, is not “absolute.”
The point is that the Constitution is a general statement and its application was expected to observe certain widely known customs and understandings. In recent years, that approach has been worn away, allowing the wording to be interpreted in ways that were not intended.
U.S. military forces are deployed in combat abroad, sometimes with major loss of American lives. Yet Congress is not usually asked for a declaration of war nor does it seem eager to be asked, whatever the Constitution requires. Sometimes, it does not even know about deployments of American forces.
The Senate holds phony sessions, at which nothing happens, for the simple purpose of preventing there being any congressional recess during which the president could make temporary appointments to office, as allowed by the Constitution. Offices go unfilled.
The Senate is required by the Constitution to give its “advice and consent” to major presidential appointments. But, to block a nominee of President Obama, the Senate refused for a year even to allow consideration of the appointment. That was not the intent of the Constitution. If they didn’t like him, the senators could have rejected him.
The same Republican leadership that permanently blocked the Obama appointment has unusually called the Senate back into regular session this summer on the grounds the Democrats are too slow in processing Trump nominees.
There’s another such issue that was in federal court this week. The “emoluments clause” of the Constitution bans federal officials from accepting “any present, emolument, office or title, of any kind whatever” from a foreign state.
Trump still receives income from his hotels, which are used by representatives of foreign states. Countries seeking favors from the federal government often lodge their representatives at Trump’s Washington hotel. Is he receiving an emolument? Who has the right to file a lawsuit, if they believe he is?
Previously, presidents simply gave up all commercial activity and avoided the question. The Constitution’s intent was observed. Now, a court will have to decide if it can apply this constitutional rule to Trump and, if so, how.
The Constitution offers so many opportunities for applying it differently from the original intent that it would be impossible to amend it to resolve all doubts. Attaching new meanings to it as a way to win partisan wars is both shortsighted and dangerous to the American system of government.
In the end, it’s up to Congress to make the Constitution work – fair to all and as intended.