Can presidents pardon themselves?
In the Philippines, the answer is certainly “No,” because a pardon may be granted only after a conviction by a final judgment. In the United States (US), the answer is not as certain, because US presidents may pardon (except in cases of impeachment) even before a conviction, and even before charges are filed. The pardon could be absolute or conditional, or could be a reduction of the penalty, or a waiver of a fine.
Perhaps the most famous and most controversial presidential pardon in US history was granted to President Richard Nixon on Sept. 8, 1974 by his erstwhile vice president, Gerald Ford, who succeeded him as president after he resigned in disgrace as an aftermath of the infamous Watergate scandal. It covered all federal crimes “committed or may have been committed” by Nixon during his term. However, per US jurisprudence, the acceptance of a pardon implies a confession of guilt.
On Jan. 21, 1977, US President Jimmy Carter pardoned unnamed thousands of military draft dodgers of the Vietnam War. In January 2000, prior to leaving his office, President Bill Clinton granted full clemency to his actor-brother Roger for his cocaine conviction.
For his part, Trump recently pardoned many of his assistants and allies led by Michael Flynn, his former national security adviser. He is reportedly inclined to grant clemency to his lawyers who tried to fish for evidence to nullify (unsuccessfully) Joe Biden’s victory.
The big question is: Can Trump pardon himself? The US Constitution does not provide a clear answer. To be sure, no US president had pardoned himself; hence, there is no existing jurisprudence to provide guidance.
Nonetheless, the US media report that “Trump wants to forgive himself” to preempt a lot of people and institutions, including the Federal Bureau of Investigation, awaiting the end of his presidential immunity to file cases against him.
A verba legis (literal) interpretation seems to contravene his “want,” because the word “grant” used by the US Constitution assumes one person giving and another person receiving. Thus, Trump—as president—can pardon anyone but not himself.
Perhaps Trump’s stubborn refusal to concede defeat is aimed at exacting a promise from Joe Biden to pardon him, like what Ford did for Nixon. But even if Biden does pardon him, the clemency will cover only federal offenses, not violations of state laws. Already, the attorneys general of New York, California, and other states are preparing criminal and tax suits against Trump to be filed after Biden takes office on Jan. 20, 2021.
To beat his enemies, Trump may take a leave from his presidential office prior to Jan. 20 to enable Vice President Mike Pence, as acting President, to grant him absolute pardon. Given his previous Machiavellian inclinations, Trump is not beyond attempting this escapade. But will his more sedate vice president participate in this caper which could damn them both in history?
In contrast, our presidents can grant pardons only after final judicial convictions. Thus, incumbents cannot grant themselves pardons, commutations, or reprieves in advance.
Based on the doctrine of separation of powers, presidential pardons are given as a check on possible excesses of the judiciary. Under the same doctrine, presidents are immune from suits and judicial processes; thus, they cannot be charged, much less convicted, of any crime while in office.
To heal the nation’s divisiveness, President Gloria Macapagal-Arroyo bestowed the most well-known pardon in recent memory to her predecessor, Joseph Estrada, after he was convicted of plunder with finality by the Sandiganbayan, sentenced to reclusion perpetua, disqualified from holding any public office, and ordered to return to the government several hundred million pesos and not a few pieces of real property.
In Risos-Vidal v. Comelec (Jan. 21, 2015), the Supreme Court ruled that the pardon granted to Estrada, though hazily worded, was absolute; it restored his civil and political rights and lifted his disqualification. As a result, he ran and won as mayor of Manila.
The only way I can think of to enable our presidents to pardon themselves is a scenario where they have a preexisting conviction prior to their ascension to the top office. But still, our Anti-Graft Law and our Ethical Standards Law prohibit public officials from using or exercising their powers to benefit them privately.
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