Can The President Pardon Himself?

INTRODUCTION

A constitutional controversy has recently arisen in the United States as well as all other countries practicing the presidential system of government. This controversy came up as a result of President Trump’s recent assertion that he can pardon himself for any crime that he might be charged with consequent to the investigation of the special counsel Robert Mueller into possible collusion between the Trump campaign and Russia as well as any act of obstruction of justice.

This article would examine the constitutionality of Donald Trump’s assertion on self-pardon, drawing inspiration from various commentaries on the issue. This article would also survey the position under the Nigerian constitutional dispensation and would finally conclude that the answer to this pertinent question lies with court.

ANOTHER TRUMP CONTROVERSY

On June 4 2018, the President of the United States of America, Donald Trump via his personal Twitter handle @realDonaldTrump claimed that

“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never-ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!”

This has sparked a furious debate both in the United States and in other jurisdictions. The pardon powers of the US President stems from the provision of Article II, Section 2, Clause 1 of the United States Constitution which states

“The President […] shall have power to grant reprieves and pardons for offences against the United States, except in Cases of Impeachment”

Etymologically speaking, the power to pardon offenders for crimes against the state was first vested in the monarch of countries since they were the supreme leaders. However, in recent times, the President has the power to completely overturn a criminal conviction, this is known as a full pardon. The President can commute a criminal sentence, turning a life sentence into a 10-year sentence or a death penalty into a life sentence. The President can make a pardon conditional, vacating a conviction but leaving paid fines in place, or even making the payment of a fine a prerequisite before a pardon takes effect which means essentially that he can alter a sentence.

A lot of experts have weighed in on the subject in favour of both sides of the argument. They seem to be of the view that politically, a self-pardon is a political suicide for any President that wants to effect change or have a legacy. Although this controversy is not entirely new President Nixon tried to pardon himself 44 years ago, a top lawyer in the Justice department in a memorandum to the deputy attorney general said the answer to that question was an unequivocal “No.”

Submissions on the issue include that of Jamal Greene, Dwight Professor of Law at Columbia Law School who gave a well thought submission when he said

“The Constitution grants the president power to issue pardons for federal crimes, It doesn’t say he can’t pardon himself, so there’s an argument to be made, but I think the better view is that a ban on self-pardons is implicit. Giving the president the power to be a judge in his own criminal case is inconsistent with this being a rule of law society. It would enable the president theoretically to commit the worst federal crimes imaginable — terrorism, treason, etc. — with impeachment as the only remedy. Reading the Constitution to require that should be avoided if at all possible.”

Also, according to John Brennan, former director of the CIA,

“The constitutional powers granted to the president for pardon are quite broad. It doesn’t exclude explicitly the president’s pardoning of himself.”

Indeed, numerous scholars have argued that such an action would likely be constitutional, as the power to pardon is exceptionally broad. However, there is no precedent as no president has ever attempted to execute a self-pardon and thus there is limited casework to guide scholars and lawyers. In the 1866 Supreme Court Case titled Ex parte Garland, the court ruled that

“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control”.

Perhaps the only attempt to execute a self-pardon was by Richard Nixon and then Acting Assistant Attorney General Mary C. Lawton stated in a memorandum that:

“Pursuant to Article II, Section 2 of the Constitution, the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”

Opponents of the President’s statement state that giving a President such Powers means that the Presidency could turn into a tyranny and the President can commit Murder, treason or any crime and pardon himself afterwards. It would appear from the wording of the US constitution that the only limit on the powers of the President is that he cannot pardon himself from an impeachment. Although, scholars have tried to distinguish between the spirit and the letter of the law claiming that an exercise of such a power is arbitrary and against the spirit of the founding fathers and draftsmen of the constitution.

UNDER NIGERIA’S CONSTITUTIONAL LAW

Relatively speaking, the question as to whether the President of Nigeria has the power to pardon himself from any crime against the state needs to be discussed based on the provisions of Section 175 of the 1999 Constitution of Nigeria which gives the President the power of Pardon. Section 175(1) states that

“The President may… grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions”.

The only limit on the exercise of such power is provided in Section 175(2) which states that

“The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State”.

Looking at the letter of this Provision, the section states clearly that the president has the power of pardon. The key word in the provision is “any person” which means that the categories or numbers of people that can be granted a pardon is unlimited. Since the President can pardon any person, then it is not a far-fetched claim that he can pardon himself based on the exact provisions of the constitution.

However, looking at the spirit of the law, the draftsmen of the constitution did not want arbitrary exercise of the pardon power by the president. Section 175(2) can speak to that giving that the power can only be exercised after consultation with the council of state. It would therefore seem that the draftsmen preferred rationality in exercising this power rather than giving a blank cheque to the President. The constitution itself seeks to uphold the principle of checks and balances thereby ensuring that most of the powers of the President are subject to an arm of the Government or a council. The constitution is fraught with such scenarios especially in cases of appointments made by the President. The power of pardon vests on the president in his role as the Head of State which suggests that such a power was meant to be exercised in the interests of the state. In countries, such as India, Turkey and Italy, these powers are vested on the President acting as Head of State and not the Head of Government perhaps to ensure that such decisions are made for pure reasons for the benefit of the state.

The Constitution in its introduction shows that the 1999 Constitution was established on the principles of freedom, equality and justice. It would therefore be against the principles and foundations on which the constitution was made for one man to be above the law. “We the People” in our constitution have declared unequivocally that “Nobody is above the law”, not even the president. It would therefore be remiss for him to have powers that place him above all thereby ensuring that all of us are no more equal. Some experts argue that for a President to be pardoned, he must step down and his Vice President who takes up office after him can then issue a pardon on his behalf. This is like what President Henry Ford did for Richard Nixon by granting him a pardon for his crimes of Obstruction of justice after Nixon stepped down as president.

In modern days, there is usually an office in the Justice Department where pardons are sent, and a Pardons Attorney who reviews and recommends applications. The President may still receive pardons personally, and may grant them at any time. The President need not provide a reason for a pardon, and the courts and the National Assembly have no legal authority to approve, disapprove, reject, or accept a pardon. Currently, the only way to change the pardon power is by constitutional amendment, though history has shown that the scope of the power can be modified by the courts.

CONCLUSION

While a lot of people argue that the President executing a self-pardon is unconstitutional, the truth remains that nothing in the constitution limits the pardon power of the president. It is now left for the courts to decide based on policy and the spirit of the law that the president being able to pardon himself defeats the very principles of equality and justice. Therefore, there is a need for the court to give a verdict on this issue being a contentious constitutional issue to ensure that the provision is correctly interpreted and until this matter is brought before the face of the court there is no current case law barring or allowing a self-pardon.

Tobi is a Fourth Year student in the Faculty of Law, University of Lagos. His core interest is in Advocacy for Good Governance and Human Rights as well as International Law. He is very interested in creating awareness and provoking discuss with his writing. He is currently the Head of Chambers of the Gani Fawehinmi Students Chambers, Faculty of Law, University of Lagos.