We would be a dictatorship, not a democracy

Harvard professor of constitutional law Noah Feldman says no, Trump can’t pardon himself, not because it would break a rule but because it would be the end of the US.

Here’s some unsolicited advice for President Donald Trump: Don’t listen to any lawyers who might tell you that you can pardon yourself, or even that it’s a close legal question. You can’t — and no court is going to rule otherwise.

There’s a decent historical argument about why, but it’s beside the point. The bottom line is that if the president could pardon himself, we would no longer have a republic — nor a government of laws rather than men. We would be a dictatorship, not a democracy.

You know that. Americans know it. The Supreme Court knows it. Now let’s move on.

Well I think “You know that” is too optimistic, but anyway.

[A]s early as 1311 (you read that right), Parliament forced the king to promise that he would only pardon “by process of law and the custom of the realm.” The idea was to rein in the pardon power, making it into an instrument of law, not of arbitrary royal prerogative.

Given that worry about the anti-legal nature of the pardon power was already more than 450 years old when the Founding Fathers drafted the U.S. Constitution during the hot summer of 1787, it’s a bit surprising that the pardon power even made it in.

In Philadelphia, the more rights-oriented republicans, like George Mason of Virginia, questioned the whole idea of the pardon power. The more pro-executive participants, like Alexander Hamilton and James Wilson, managed to get it in, albeit without much debate. The idea was that pardons served mercy and could be expedient.

Pardoning oneself obviously has nothing to do with mercy.

But frankly, the history isn’t the point. The basic problem with self-pardon is that it would make a mockery of the very idea that the U.S. operates under the rule of law. A president who could self-pardon could violate literally any federal law with impunity, knowing that the only risk was removal from office by impeachment.

We have a name for an elected leader who is outside the law: dictator. And dictatorship is fundamentally inconsistent with the republic established by the Constitution. In fact, it’s a little difficult to think of any single idea that would more grossly violate the rule of law than a president free to break any and every law and then wave a get-out-of-jail-free card.

Trump is being a dictator in every way he can get away with it.

I can predict with complete confidence that no court would uphold a presidential self-pardon. To do so would be to render the courts essentially useless as checks on the executive, to say nothing of Congress, which passes the laws in the first place.

This isn’t a normal legal problem for courts to resolve by weighing plausible, competing arguments. It’s the whole ball of wax: the survival of constitutional government. The courts will treat it as such.

Good. I hope he’s right. It seems likely that he is – justices are not likely to surrender to a dictator.

8 Responses to “We would be a dictatorship, not a democracy”