By: Caitlin Gallagher
Volume X – Issue II – Spring 2025
I. INTRODUCTION
The recent change of presidential administrations has again brought light to a bizarre fixture of the American political system: the Presidential Pardon. Famously, the first pardon ever issued by a president was issued in 1795 by George Washington by which he issued amnesty to those who participated in the Pennsylvania Whiskey Rebellion, [1] a protest movement led by a group of farmers upset by a newly imposed tax on whiskey. [2] Later on, Abraham Lincoln and Andrew Jackson used their pardon authority to pardon confederate soldiers and leaders, among whom included Confederacy president Jefferson Davis. [3] A more recently uncovered pardon was President Lincoln’s pardon of President Biden’s great-great-grandfather, Moses J. Robinette. This was at the request of a West Virginia Senator after Robinette had been unanimously convicted of assaulting a fellow Union Army member with a knife. [4] Richard Nixon commuted Jimmy Hoffa’s sentence in 1971 in hopes of winning back favor with union members only to be the later beneficiary of his predecessor’s, President Ford, pardon mercy. [5] Bill Clinton pardoned his younger half brother, Roger Clinton Jr., as he was leaving office in 2001, for his brother to plead guilty to drunk driving charges less than a year later. [6] In each of these controversial instances, there is not an overwhelming display of evidence that the conviction was incorrect or that the court got it wrong. Rather there seems to be evidence to suggest that these pardons were issued to aid a friend or garner political favor.
The presidential pardon is re-examined nearly every time an outgoing president has issued the pardons he deemed necessary. Perhaps the two most controversial pardons in this transition were President Biden’s pardon of his son Hunter Biden for any crimes he may have committed in between 2014 and 2024, [7] and President Trump’s pardon of those involved in the infamous January 6th insurrection. [8] Some were tempted to say that pardons like these were unprecedented, but a deeper dive into the history of this queer legal mechanism shows that this claim is untrue. A string of legal challenges and questions have protected this power of the president for hundreds of years, but there is still one question that lingers: is the President able to pardon themself? For the first time in American history, a convicted felon holds the highest executive office in the country, and this question has grown strikingly poignant.
II. THE LEGAL HISTORY OF THE PRESIDENTIAL PARDON
The power to pardon comes from authority given to the President in Article II, Section 2, Clause 1 of the Constitution which states, “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” [9] This legal idea can be traced back to when the King of England’s ability to grant pardons extended to American colonists. [10] It was within the King’s power to, “extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend." [11] At the Constitutional Convention, various limitations to this power were discussed but none were adopted besides the limit on cases of impeachment.
Almost a century later, the power of the presidential pardon was further enshrined in the American legal system in Ex parte Garland (1866). In that case, Garland was granted a pardon by the president for his involvement with the Confederacy, which was considered to be a rebellion against the United States following the Civil War. [12] In Garland, the court importantly decided 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.” [13] This case made it clear from a very early point in the country’s history that the president’s power to pardon would rarely be limited except in cases already defined in the Constitution.
However, the court did put one restraint on the power of the president in United States v. Wilson (1883). In that case, the defendant, George Wilson, had been tried and convicted of robbing mail belonging to the United States. Wilson was sentenced to death but later pardoned by Andrew Jackson. The Court was tasked with deciding the acceptable scope for presidential pardons and whether or not a defendant was entitled to not accept a presidential pardon. On deciding whether or not a defendant is required to accept the pardon for whatever reason he chooses, the court decided that this is acceptable because of the fact that a pardon is a “deed”, and a deed may not be carried out unless the recipient accepts it as a gift. [14] In this case, the defendant was sentenced to death. Although the court found it implausible that any defendant would reject a pardon for such a capital sentence, they decided the rule regarding pardons would have to be consistent across all crimes eligible. A defendant would have a feasible reason to reject a pardon for a misdemeanor, and because of that, the same privilege to reject such a pardon would have to be extended to those reckoning with pardons for a capital sentence. [15] With this case, the court’s willingness to place some limitations on the power of the president is clear, even if it is not willing to limit who can be pardoned and for what crimes.
This doctrine was upheld in 1915 with Burdick v. United States (1915). In Burdick, the Court reached a similar conclusion, the opinion stating, “Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve.” [16] In other words, the Court understands that there are potentially valid reasons to reject a pardon, and that a pardon cannot be forced upon someone. The opinion in this case also makes clear that beyond less than favorable conditions to accepting a pardon, a presidential pardon carries the “imputation of guilt”, meaning that if a person were to accept the pardon, there may be the implicit assumption that they are guilty. [17] If a person wishes to avoid this assumption, Burdick permits them to not accept a pardon extended by the President.
However, even given the small limit as the pardon as a “granted deed”, as recently as 1974, in Schick v. Reed (1974), the Supreme Court again upheld the wide scope of the president’s ability to pardon someone for a crime. In Schick, the Supreme Court was tasked with deciding whether or not President Eisenhower had overstepped in his use of the pardon when he commuted the death sentence of Schick, who was tried and convicted for murder under the Uniform Code of Military Justice. President Eisenhower commuted the death sentence to a sentence of life imprisonment but without the possibility of parole. The petitioner argued that Eisenhower had overstepped because of the conditional nature of the pardon. The nature of the pardon was conditional because the petitioner had originally been sentenced to life imprisonment instead of death in military court, he would have been given the opportunity of parole. However, the Supreme Court remained unconvinced by the petitioner’s argument. The Court held that the power of the president to pardon is “an enumerated power of the Constitution and.., its limitations, if any, must be found in the Constitution itself." [18] The Court’s opinion in Schick case also explains that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. [19] This case once again shows the reluctance of the Supreme Court to impose any limit on the president’s power unless that limit was directly stated in the Constitution, and that power to issue a pardon can extend to the point at which it would violate some other provision of the Constitution.
The history of court decisions surrounding the pardon make it clear that the presidential power will remain a fixture of the legal system bar any change to the Constitution. It is also clear that the Supreme Court is largely unwilling to impose major restrictions on this power besides the fact that a recipient may not be interested in accepting the pardon at all. It is also notable to highlight the fact that the Supreme Court has made clear that the only limitations to the pardon power are ones directly listed in the Constitution. This makes answering the question of presidential self-pardons more difficult as it is an extension of the power that is explicitly prohibited in the Constitution. However, as this paper will argue later, not limiting the ability to self-pardon could only result from an extremely narrow reading of the Constitution. When looking at the Constitution as a whole, the possibility of a presidential self-pardon becomes less realistic.
III. NIXON AND THE POTENTIAL FOR SELF-PARDON
In analyzing whether or not the president has the ability to pardon themselves, it is important to not only understand the legal history of the scope of presidential pardon but also the circumstances that led to the decisions of past presidents to not pardon themselves. Perhaps the closest the country has ever gotten to receiving an answer to this question was towards the end of President Nixon’s tenure in executive office. In late July of 1974, the House Judiciary Committee that was tasked with investigating the Watergate conspiracy voted to adopt three articles of impeachment against President Nixon. It became clear to Nixon and the team around him that he would be facing more months of investigation and perhaps even criminal charges for the acts they engaged in and facilitated at the Watergate Hotel. Nixon privately began to wonder whether or not he would be able to issue a pardon for himself in order to avoid any criminal liability. His team reportedly advised him that he was able to do so, but he decided against it presumably because it would have a detrimental impact on public opinion about his administration. [20] After his resignation, Nixon was pardoned by his predecessor, President Gerald Ford, who famously carried relevant quotes from the opinion in Burdick in his wallet that point to the fact that although Nixon was never convicted, his decision to accept Ford’s pardon carried an “imputation of guilt”. [21]
Despite his team’s alleged confidence that Nixon could relieve himself of a lengthy, detailed trial and a potentially guilty verdict, Mary C. Lawton, the Acting Assistant Attorney General in 1974, issued a memo stating very explicitly that, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” [22] Lawton’s memo did provide for two effective loopholes should the president be accused or convicted of a crime and wish to remain in office. [23] Lawton’s perspective is a useful one as she reads the Constitution in a more broad manner rather than looking to specific restrictions detailed in the Article II, Section 2, Clause 1. Although Lawton’s memo is not binding legal precedent, it does give insight into the thought process of some professionals in the legal field at one of the most poignant times the question of a self-pardon has been raised.
IV. CAN THE PRESIDENT PARDON THEMSELVES?
The question has been raised several times since the founding of the country, but has been more relevant than ever given the past few presidential administrations. In May of 2018, President Donald Trump tweeted, “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?” [24] His public statement on social media was backed up by his lawyer at the time, Rudy Giulliani. It is clear that President Trump could not issue himself a pardon for any of the crimes he was already convicted of as they were all state-level convictions and the president has no authority to pardon anything other than federal crimes. However, given that Donald Trump has been elected President for a second term, the question still remains unanswered: could Donald Trump or any other president pardon themselves? In an era where it is no longer taken for granted that the president will not commit any federal crimes, it is imperative that this question receives an answer.
Perhaps the simplest answer to the question is yes, the president does have the power to pardon themself. Based on the legal background of the power given in this paper, it seems clear how broad the presidential pardon is, and that it would be out of the ordinary for the Supreme Court to reverse hundreds of years of precedent that state the broad power of the president to pardon themself. In verbalizing this opinion, Judge Richard Posner, who wrote a book in 1999 about Bill Clinton’s impeachment wrote, “[I]t has generally been inferred front the breadth of the constitutional language that the President can indeed pardon himself, and although this conclusion has been challenged, it is unlikely that the present Supreme Court would be bold enough, in the teeth of the constitutional language, to read into the pardon clause an exception for self-pardoning.” [25]
However, Posner’s answer to the question is not the right answer merely because it is the simplest one. Another legal professional who has tried to answer this question is Brian Kalt, a Professor of Law at Michigan State University College of Law. [26] Through a less narrow reading of the Constitution, Kalt makes the same argument that Mary Lawton made in 1974—that the Constitution implicitly disallows the power of the president to self-pardon. First, he examines the English roots of the presidential power. As explained earlier in this paper, the decision to give the president this power was derived from the English government, which is why the executive was given virtually unlimited power. Kalt points to the fact that the English monarch’s power to pardon was eventually limited by Parliament and writes, “The Framers thus inherited a model of the pardon power-broad royal fiat-that would have to be adapted to fit the more circumscribed office of the presidency.” [27] He also argues that the Framers of the Constitution did not intend for self-pardons to be valid because they could not conceive of them (it had never occurred in the English system because the King was considered automatically above the law) or that the “illegality of self-pardons went without saying”. [28]
Beyond looking at the Constitutional Framers’ intent, Kalt also closely analyzes the text and the previous decisions. As we know from Schick, the power is constrained only by the limits explicitly written out in the Constitution. Kalt argues that by only reading the clause by itself, an expressio unius reading, one could lose sight of limitations that are given in other portions of the Constitution when read more holistically. [29] A more structural reading of the Constitution suggests a more limited role of the executive in comparison to the previous English system, which Kalt argues puts the President above no other citizen of the United States. [30] Kalt uses Schick as the cornerstone of his argument, as Schick maintains that if a pardon should be valid, it must not violate any other portion of the Constitution, and that the limits for the power can be found in the Constitution, not only in the immediate Pardon Clause. [31]
A self-pardon would seem to conflict with the very existence of the Constitution as it would make the President more similar to the monarch the authors were so desperate to avoid creating. To ignore this fact would be to ignore something crucial about the document that grants the pardon to pardon in the first place. More than anything, the Constitution was written as a means to prevent a return to a ruler who was completely above the law. It is worrisome to democracy that the executive could be in a position to break laws and not receive adequate consequences. Some might wrongly point to these considerations as incorrect, but even the language in Schick posits that the Constitution must be considered more generally in deciding limits on the power to pardon. It would take a radical departure from the principles of the Constitution and Supreme Court precedent for any court to find a presidential self-pardon to be Constitutional.
V. CONCLUSION
It would be completely inconsistent with the Constitution and previous Supreme Court rulings if the President should be granted the ability to pardon themselves. Ours is an era, for better or for worse, that is unprecedented. A president issuing a self-pardon would be considered out of line with American political tradition, but then again, the American president being a convicted felon is also unprecedented. While some might be unbothered by the prospect that this question remains unanswered, its answer has major implications for our system of democracy. The answer to this question is far from inconsequential. In a country that has prided itself on being a land of equal opportunity, freedom, and fairness since its founding, what would it say about the rule of law and equality if the president was able to escape prosecution and conviction of any federal crime? A thorough analysis of history and the research done by modern legal scholars proves that the idea of such a pardon is un-American and should be struck down by the Supreme Court should it ever be faced with a President willing to carry it out.
Endnotes
[1] Shogan, Colleen. 2020. “The History of the Pardon Power.” White House Historical Association.
[2] The Mount Vernon Ladies Association. 2025. “George Washington and the Whiskey Rebellion.” Mount Vernon.
[3] Shogan, Colleen. 2020. “The History of the Pardon Power.”
[4] Gerleman, David J. 2024. “Documents reveal Abraham Lincoln pardoned Biden’s great-great-grandfather.” Washington Post.
[5] Shogan, Colleen. 2020. “The History of the Pardon Power.”
[6] Brasch, Ben. 2024. “Meet Roger Clinton, a first-family member pardoned long before Hunter Biden.” Washington Post.
[7] Office of the Pardon Attorney. 2025. “Office of the Pardon Attorney | Pardons Granted by President Joseph Biden (2021-2025).” Department of Justice.
[8] Office of the Pardon Attorney. 2025. “Office of the Pardon Attorney | Pardons Granted by President Joseph Biden (2021-2025).”
[9] Legal Information Institute, "Historical Background on the Pardon Power," Constitution Annotated, Cornell Law School, accessed April 27, 2025.
[10] Legal Information Institute, "Historical Background on the Pardon Power.”
[11] Schick v. Reed, 419 U.S. 256 (1974).
[12] Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).
[13] Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).
[14] United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).
[15] United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).
[16] Burdick v. United States, 236 U.S. 79 (1915).
[17] Burdick v. United States, 236 U.S. 79 (1915).
[18] Burdick v. United States, 236 U.S. 79 (1915).
[19] Burdick v. United States, 236 U.S. 79 (1915).
[20] Bomboy, Scott. 2018. “Explaining the presidential self-pardon debate.” National Constitution Center.
[21] National Constitution Center Staff. 2024. “The Nixon pardon in constitutional retrospect | Constitution Center.” The National Constitution Center.
[22] Lawton, Mary C. 1974. “Presidential or Legislative Pardon of the President.” Department of Justice.
[23] Lawton, Mary C. 1974. “Presidential or Legislative Pardon of the President.”
[24] Bomboy, Scott. 2018. “Explaining the presidential self-pardon debate.” National Constitution Center.
[25] Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (Cambridge, MA: Harvard University Press, 1999).
[26] Michigan State University College of Law. n.d. “Brian C. Kalt Professor of Law & Harold Norris Faculty Scholar.” Michigan State University College of Law. Accessed April 27, 2025.
[27] “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons.”
[28] “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons.”
[29] “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons.”
[30] “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons.”
[31] “Pardon Me?: The Constitutional Case Against Presidential Self-Pardons.”