President Donald Trump’s assertion of constitutional authority to grant himself a pardon was effectively blocked on January 13 when the House of Representatives introduced an article of impeachment, charging him with “incitement to insurrection.”
The insuperable hurdle in Trump’s path to a self-pardon comes in the language of the Pardon Clause of the Constitution, Article II, Section 2, which vests in the president authority to grant pardons for all offenses against the United States, “except in cases of impeachment.” The textual exception to the pardon power specifically bars the president from granting a pardon to anyone—including himself—who is the subject of impeachment.
Delegates to the Constitutional Convention inserted this sharp limitation on the president’s pardoning authority as a result of their familiarity with English legal history. The framers’ drafting of the Pardon Clause was directly influenced by English law and practice. A single historical episode in the 17th Century persuaded the framers to protect the integrity of the impeachment power from an overreaching pardoning power.
Parliament’s impeachment of the Earl of Danby in 1678 represented a historical turning point for England and, as it turned out years later, the United States. Parliament was outraged to learn that Lord Danby had been working secretively to advance King Charles II’s foreign policy goals, which offended the sentiments and policies of Parliament. Danby, the King’s chief minister, was promoting policies that tilted pro-French and sought to restore the influence of Roman Catholicism. Danby, it was discovered, was soliciting a bribe to be paid to Charles.
At that historical juncture, Parliament had no authority to impeach King Charles, and so lawmakers, in their early efforts to establish executive accountability, launched impeachment proceedings against Lord Danby. Danby was charged with treason and high crimes and misdemeanors. Charles was anxious to protect his loyal aide and determined to stop the impeachment.
Charles marched to the House of Lords and declared his intention to block parliamentary efforts to impeach Danby. He stated that he had authorized Danby’s acts, that he had pardoned Danby and that he had dismissed Danby.
Parliament was not to be deterred. Sir Francis Wittington, a former solicitor General and widely regarded as a great lawyer, recognized the existential threat to the impeachment power. Wittington stated, “An impeachment is of no purpose when a pardon shall stop our mouths.”
For a nation in which the principle of executive accountability was still in its infancy, there could be no tolerance of a monarchical pardon to derail impeachment. In a century riddled with constitutional crises between the House of Commons and the Crown, Charles had no interest in yet another. He withdrew his pardon of Danby, who was sent to the Tower of London. If Parliament had accepted the pardon, the very premise of accountability would have perished, for the King would be free to screen ministers from parliamentary inquiry and impeachment.
In 1701, Parliament passed the Act of Settlement, which codified its sentiments by declaring that “no pardon” shall “be pleadable to an impeachment.” The statute and the underlying arguments worked a direct influence on the framers’ design of the Pardon Clause, including the language that barred the president from granting a pardon “in cases of impeachment.”
The framers of the Constitution had no interest in granting to the president a power that had been denied to the King of England. No delegate to the Constitutional Convention even flirted with the idea of vesting the president with authority to exercise the pardon power for the purpose of undermining the impeachment power. Indeed, for a body that came increasingly to viewing the impeachment power as “the grand inquest of the nation,” and thus a critical means of preserving the republic, the very suggestion of such authority would have triggered an avalanche of criticisms and accusations of monarchical sympathies.
The constitutional denial to the president of authority to grant pardons in cases of impeachment is effectively a denial to President Trump of authority to pardon himself, since he is a subject of impeachment proceedings. President Trump’s public musings about a self-pardon, and the debates surrounding the question of whether a president may pardon himself, have been rendered moot by the action of the House of Representatives.
The very idea of a self-pardon is repugnant to our constitutional order. Such authority would destroy the rule of law, since a self-pardon exalts the president above the law. A self-pardon, moreover, violates one of the most hallowed principles in the history of Anglo-American legal history: no man may serve as judge of his own cause. That proposition, set forth by the magisterial Sir Edward Coke in 1610, in the justly celebrated, Dr. Bonham’s Case, has never been challenged, until now. President Trump’s claim of authority to pardon himself, would introduce into our legal system the very kind of arbitrary executive authority that the founders of this nation rejected, in every way, shape and form.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.