Pardon me, please.
Why pardons are never self-reflexive — in small cases or big ones.
Rudolph Giuliani’s recent comment that a president can probably pardon himself has opened up a new round of legal speculation. Law professionals however seem to be having trouble with the notion of what it means to pardon. Preet Bharara, former US prosecutor, said this on CNN:
“I think if the president decided he was going to pardon himself, I think it is almost self-executing impeachment. Whether or not there is an argument that is not what the framers could have intended.”
However, treating the question of a “self-pardon” rationally and as a relatively simple semantic problem should disperse all fears of a presidential “self-pardon.”
First, the Constitution says that a president has the power to pardon. That is undisputed. But the notion that people are able to pardon themselves never occurred to the framers. That is because the common sense notion behind pardon is something that is given or done to others and not to oneself.
The president can pardon a wrong-doer because he represents the state and the wrong-doer’s offense to the state is absolved by the primary representative of the state. The state legally forgives the wrong-doer for their offense against the state.
Equally, if I obnoxiously and loudly belch in a crowded elevator because of an unwise gourmet decision I might say, “Pardon me.” The group may or may not pardon me. But I cannot pardon myself. The offense was made against others, not against myself. Logically and morally I have no right to pardon myself. It should also be said that it is impossible for me to pardon myself because such a pardon would not be authorized by the group in the elevator.
A president can pardon a wrong-doer because the power of pardon is by statute vested in him by the state. The state is therefore acting through the president. The president is authorized by the offended, the state, to pardon.
But pardons can never be self-reflexive because in all meaningful cases of pardoning it is always one party pardoning another for a transgression against the first party. Or it is a case of an authorized party pardoning a wrong-doer on behalf, say, of the state (e.g., Trump pardoning Scooter Libby).
This fundamental limitation on the concept of “pardon” is what stops the Constitution from veering into absurdity and potential anarchy. No one has the right to pardon himself. We always ask others to pardon us. This simple common usage was clearly in the minds of the framers when they inserted this provision in the Constitution. The interpretation of this clause is entirely dependent on common sense notions of the word, “pardon.” When we say “pardon” it always means an act of forgiveness directed at others, not oneself.
