The President’s power to pardon is particularly important when considering whether the President has the ability to excuse his own wrongdoing and corruption within the Executive Branch. The big question is, can the President pardon himself and how will this shape American Democracy?
A president’s ability to self-pardon is most definitely a threat to democracy.
The Pardon Clause of the Constitution, Article II, Section 2, Clause 1, in reference to Executive power states this, “he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The difference between clemency and pardoning is important to note. In the case of clemency, an alleged crime is committed but leniency is granted. In the case of pardon, a convicted individual regains rights that were lost following a conviction.
In response to “The Impact of Presidential Pardoning on American Democracy” by Felicia Gordon at Boston University posted on February 11, 2019, the notion of presidential pardoning is concerning when evaluating the United States’ governmental ability to constrain executive power. The debate over the president’s ability to self-pardon is ongoing and there are opposing views based on the constitutional language of the clause and set precedent. While it is still unclear and being discussed whether the President has self-pardoning powers, legal scholars like Brian Kalt believe that the President indeed has no self-pardoning ability considering set precedent. In contrast, American jurist Judge Richard Posner concluded that due to the constitutional language of the clause it can be inferred that the President does have the power to self-pardon.
The debate about the president’s ability to self-pardon is especially interesting because of the ongoing Mueller Investigation since 2017. In the event that the investigation reveals the 2016 election was unfairly affected by the Russian government and that Trump was involved, the possibility that Trump could pardon these actions is detrimental to democracy. One of main reasons self-pardon is a major threat to democracy is because it violates the unwritten political norms or laws causing assumptions about self-pardoning. According to Phillipe Schmitter and Terry Lynn Karl in “What Democracy Is . . . and Is Not,” the democratic bargain and bounded uncertainty, together, creates a healthy democracy. If it is revealed that the 2016 election was unfairly won by Trump and the Republican party, not only does this break the public trust, the action of self-pardoning would further injure the concept of bounded uncertainty and the trust in the democratic bargain, that the party in power does not abuse their power. This would damage American democracy because the two-party system would not be upheld given that the next election the Republican Party would lose the trust of the people and the possibility that they could gain power in equal competition to the Democratic Party would be limited.
The degradation of the two-party system would also manifest itself through the loss of public trust leading to lack of tolerance and forbearance. Steven Levitsky and Daniel Ziblatt, in their book How Democracies Die, highlight the importance of mutual toleration and institutional forbearance to American Democracy. According to their study, there has been a steady degradation of political social norms and forbearance since the 1990s. This is concerning to American Democracy because the polarization between the two-parties can lead to gridlock in the democratic system. In the case that President Trump self-pardons this would damage these political norms and respect between the parties causing the two-party system to fall.
The greatest concern towards American Democracy however, is how the ability to self-pardon would cause executive aggrandizement. According to Levitsky, executive aggrandizement is one of the signs of modern day, democratic backsliding. The imbalance in the political party of the branches and the power of the Executive could lead to a more authoritarian state and further catalyze the democratic backsliding that has already begun occurring. Some of this is in part because of the Legislative and Judicial branches’ inability to restrict and yielding of power to the Executive branch, and some of this is because the parties’ inability to be the gate that protects the government from populist leaders. The breakdown of the parties would damage democratic institution, and this would place American Democracy at a vulnerable state to populist or authoritarian leaders.
The pardoning of a president is not new. In the past, after Nixon resigned from office prior to impending impeachment, President Gerald Ford pardoned him in Proclamation 4311 on September 9, 1974. Ford did this to prevent further polarization of the public that he believed would result from a drawn-out trial. Ford saw the increased polarization as a threat to American Democracy. At this time in the United States, as polarization and deep cultural cleavages continue to affect American politics, pardoning the behavior of a President has the chance of producing the opposite effect of what Ford intended in 1974.
Over time, the resentment has grown among the people. Policy and government more frequently honor the desires of the wealthy and faces gridlock due to the lack of tolerance and forbearance, and the government faces threats of executive aggrandizement. At this time, the President overriding the decisions of Congress and the bill signed to declare national emergency to build the wall already pushes the limits of executive power. Self-pardoning of the President only continues to challenge the limits of executive power and this can further quicken the erosion of democracy.
*Photo under the Creative Commons*, The Two Party Symbols, Creative Commons Zero License