Does the president have an absolute right to pardon himself?

On June 4, 2018, President Trump posted a tweet declaring, among other things, that “I have an absolute right to PARDON myself…”

On September 5, 2018, during confirmation proceedings for Supreme Court nominee Brett Kavanaugh, Senator Patrick Leahy, expressly referencing Trump’s claim, asked Kavanaugh whether the president has an absolute right to pardon himself under the Constitution. Now-Justice Kavanaugh demurred on the basis that it was a hypothetical question, consistent with what is known as the “Ginsberg Rule” — named for a tactic employed by the late Justice Ruth Bader-Ginsberg during her own confirmation proceeding — which calls for judges and would-be judges to decline to answer questions about their personal views on issues that might come before them in their official capacity as a judge.

Senator Mike Lee also questioned Justice Kavanaugh on September 5, 2018. Senator Lee was a decidedly sympathetic questioner of the nominee. One of the questions Senator Lee asked was: “Do you have a favorite among the Federalist Papers?” The Federalist Papers, published in late 1787 and early 1788, were a series of numbered essays written by Alexander Hamilton, James Madison and John Jay, all under the pseudonym “Publius,” advocating for the ratification of the United States Constitution.

More than one conservative entity derives its name from the Federalist Papers. These include the Federalist Society, a conservative legal organization that advocates for a textualist and originalist interpretation of the Constitution and hand-selected Justice Neil Gorsuch for nomination to the United States Supreme Court, and The Federalist, a conservative online magazine and podcast, the editor-in-chief of which is Molly Hemingway, a frequent Fox News contributor. In a May 28, 2024, article posted on tomklingenstein.com (an unabashedly pro-Trump outlet), authors Glenn Ellmers and Michael Anton refer to the Federalist Papers as “the founders’ instruction manual, so to speak, for the Constitution.”

I do not mean to suggest that this is a peculiarly conservative position. Many lawyers, judges and politicians across a broad spectrum of legal and political ideologies regard the Federalist Papers as an indispensable resource for understanding the United State Constitution. My point is that, any way you slice it, it cannot reasonably be disputed that the Federalist Papers serve as a bedrock cornerstone of conservative legal and political doctrine in the United States.

In any event, in response to Senator Lee’s question, Justice Kavanaugh smiled and said “I like a lot of Federalist Papers.” He went on to list several, including Federalist 69, authored by Alexander Hamilton, which distinguishes the constitutional presidency from the British monarchy. Of it, Justice Kavanaugh said that “it’s very important when Hamilton explains all the ways in which the presidency is not a monarchy in our constitutional system. I think that’s very important.” The first two sentences of the final paragraph in Federalist 69 read as follows:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. (Emphasis supplied.)

The Federalist Papers proclaim that the President of the United States is “amenable to personal punishment and disgrace.” This is one of the “very important” distinctions between the presidency and a monarchy that the original proponents of the United States Constitution argued to the American people, a distinction that is, apparently, revered by Justice Kavanaugh and Senator Lee. An absolute right to pardon one’s self reflects no such amenability and, indeed, would be in flagrant contradiction to it.

One of the Federalist Papers that Justice Kavanaugh did not mention during his confirmation proceeding is Federalist 74, also authored by Alexander Hamilton. Therein, Hamilton writes about, among other things, the pardon power, which resides in Article II, Section 2, of the Constitution, and states that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States.” Hamilton argues that such power is best exercised by one man, rather than a body of men.

As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection….

Would having the power (the absolute power, according to President Trump) to pardon one’s self “naturally inspire scrupulousness and caution?” Would “the dread of being accused of weakness or connivance” be enough to squelch the temptation to exercise one’s absolute power to relieve one’s self of the consequences of their actions? Based on what he wrote in Federalist 74, it appears that Alexander Hamilton did not think so.

In the event that President Trump is reelected in November, it is only a matter of time before the issue of self-pardon reenters the public discourse and some politician or media figure accurately points out that the text of the Constitution does not expressly state that the President cannot pardon himself. I submit that there is a reason why it does not.

In a March 14, 2024, article posted on tomklingenstein.com, author Frank DeVito discusses the state of originalism as a mechanism among right-of-center lawyers, judges and legal scholars for interpreting the Constitution. Therein, he references Mere Natural Law, a 2023 book by law professor Hadley Arkes. DeVito outlines with approval Professor Arkes’ message to the legal community that “there are ‘anchoring axioms,’ not written into any constitutional provision or statute, that are necessarily true” and should be taken into account when interpreting the law. DeVito quotes Professor Arkes as follows:

The Founders took for granted those anchoring axioms of the Natural Law as the moral ground of the Constitution they were seeking to put into place. But those anchoring truths were so grounded in common sense that, in the trick of an eye, lawyers in our own time had stopped noticing them. I would hold then to an originalism that contains the moral ground of the law as that Founding generation understood it.

DeVito comments that “interpreters of the Constitution need to remember that natural law principles were at work when the Founders drafted the Constitution, and continue to be at work any time someone interprets legal text.”

When responding to Senator Lee during his confirmation proceeding, Justice Kavanaugh spoke of Federalist 10, authored by James Madison. Madison is commonly referred to as the “father” of the American Constitution. A silhouette of his likeness serves as the emblem of The Federalist Society.

 In his confirmation response, Justice Kavanaugh referenced Madison’s discussion of the perils of faction, which constitutes the primary focus of the essay. However, Federalist 10 — one of the most eloquently written documents in the history of American politics — also includes Madison’s observation that “[n]o man is allowed to be a judge in his own cause.”

This concept dates back to Roman Law () and was part of the Justinian Code of the Sixth Century. It was articulated by Thomas Hobbes in his 1651 book Leviathan, a text that many among the founding generation of American politicians would certainly have read. It was cited in Justice Samuel Chase’s concurring opinion in the United States Supreme Court’s 1798 Calder v. Bull decision, in which Justice Chase wrote that “a law that makes a man a Judge in his own cause...is against all reason and justice.” I submit that Madison’s declaration that “no man is allowed to be a judge in his own cause” is one of the quintessential “anchoring axioms” that our Founding Fathers took for granted as one of the moral grounds of the Constitution they were framing.

Why didn’t the framers of our Constitution take the time to specify that the President does not have the “absolute right” to pardon himself? Because, to them, it was so patently obvious that the need to spell it out probably never even crossed their minds.

The so-called “Ginsberg Rule” that Justice Kavanaugh employed when questioned by Senator Leahy is a generally accepted and, many would argue, prudent way for a judicial nominee to respond during a confirmation proceeding. Justice Kavanaugh should not be criticized for it. Be that as it may, if I were ever placed under oath and asked in front of a TV camera whether the President of the United States has an absolute right to pardon himself, my answer would be: “No. Absolutely not.”

Michael H. Bloom recently retired after 12 years as a circuit court judge in Oneida County. He is also a former Oneida County district attorney and criminal defense attorney.