Although it is a touch unfair to compare Hillary Clinton's alleged indiscretions with Donald Trump's well-evidenced ones, a running story during this US elections season has been about not the electability but the indictability of both these candidates. The nature of the news coming out has thrown up an unusually large number of questions in the US media about impeachment. A quick sample: Will Hillary Clinton be the first ever President to be impeached in the first year in office? Will Donald Trump be allowed to take the oath of office on 20th January 2017 if he's indicted between election day (8th November) and then? None of these were sufficient to whet TDL's unhealthy appetite for topics for his posts, until this entry on the Wall Street Journal's blog raised a mouth-watering constitutional question, and we must dive in.
The premise is simple enough: can Presidents pardon themselves? The language in Article II, Section 2, Clause 1 of the US Constitution certainly doesn't prohibit this possibility explicitly:
[The President] shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.
The explicit restrictions on the US President's power for pardon, then, are:
• Obviously, the matter under pardon consideration should be an offence, and not a civil matter
• The offence committed should be a federal offence ("against the United States", not its constituent states)
• The pardon cannot affect any impeachment process (against a President, Senator, Judge, Governor, and so on) instituted in a legislature
Other than these restrictions, the pardon power of the President, including the direction of the pardon, seems untrammelled. Is self-pardon prohibited implicitly then? The Heritage Guide to the Constitution seems to lean in that direction, by making the natural justice argument - nemo judex in causa sua:
The possibility of a President pardoning himself for a crime is not precluded by the explicit language of the Constitution, and, during the summer of 1974, some of President Richard M. Nixon's lawyers argued that it was constitutionally permissible. But a broader reading of the Constitution and the general principles of the traditions of United States law might lead to the conclusion that a self-pardon is constitutionally impermissible. It would seem to violate the principles that a man should not be a judge in his own case; that the rule of law is supreme and the United States is a nation of laws, not men; and that the President is not above the law.
Even Nixon, that paragon of all things slimy and scary when it comes to overweening Presidential power, resigned rather than taking the self-pardon route. Ronald Reagan had also landed in a not too dissimilar situation with his Iran-Contra dealings. His aides and supporters too believed that he could and should pardon himself. Ultimately, he did nothing, and managed to escape indictment anyway, depriving us once again of the precedent that we crave so desperately. The question rose to prominence again during Bill Clinton's impeachment proceedings, a topic covered intensively by Judge Richard Posner in his book on the subject. Bill Clinton actually went ahead and issued a statement promising he will not pardon himself in the event of an indictment, something many believe he should not have done, including Judge Posner, who writes:
It has generally been inferred from the breadth of the constitutional language that the President can indeed pardon himself, and although this conclusion has been challenged, it is unlikely that the present Supreme Court would be bold enough, in the teeth of the constitutional language, to read into the pardon clause an exception for self-pardoning. Unlikely, but not inconceivable.
This line of reasoning kept the question open, and we still don't have anything approaching an indisputable answer, though this definitive article published in the Yale Law Journal really should have put the issue to rest. Noting, though, the current partisan rancour and the propensities of these two candidates, especially The Donald, we just might get the debate that we anticipate with every fibre of our gluttonous appetite sometime in the next four years.
Next time: the law of pardons in India. Unless Trump gets elected, in which case I will be busy dumping my drastically diminishing equity portfolio...
No comments:
Post a Comment