If President Trump is counting on his pardon power as a way
of eluding special counsel Robert S. Mueller III, he is mistaken. He is
ignoring a core part of the Constitution that most of us have overlooked, too.
Most people assume that the president wields absolute authority to pardon
others and potentially even himself. However, the Constitution, correctly
understood, imposes limits on a president’s ability to grant pardons if they
are issued for the purpose of self-protection.
This is not because of some abstract notion of political
morality or a vague commitment to the rule of law. It is not
because of the maxim, “No one may be the judge in his own case,” because a
pardon is an executive action, not a judicial act.
Rather, the answer lies in a neglected part of the
Constitution: Article II, Section 3, which directs that the
president “shall take Care that the Laws be faithfully executed.”
Underscoring that directive is the fact that the only oath
whose precise formulation is detailed in the Constitution is the one taken by
the president: “I do solemnly swear (or affirm) that I will faithfully
executethe Office of President of the United States.” The Constitution refers
to many offices as “Office[s] of Trust,” invoking the legal concept of
trusteeship, but the president’s faithfulness is the one most explicitly
commanded by the document.
The language of faith here is no accident: The concept flows
from the Latin “fiducia,” meaning faith. Lawyers in the 18th century used the
phrase “faithfully execute” in legal instruments such as trusts to impose
duties of loyalty and care to others, and the phrase appears in many colonial
corporate charters and early state constitutions. The phrase “faithfully
execute” incorporates the president’s obligation to have fidelity to the best
interests of the people. Think of the common-law concept of fiduciary duty
applied to lawyers and agents, transplanted to the public sector. These
commitments are as foundational to constitutional law as they are to business
ethics and corporate law.
The framers imported the well-known fiduciary duty of
loyalty from the common law precisely to constrain the exercise of the
president’s powers under the Constitution. They used the language of faith and
trust to signal to courts and to officials that they were invoking well-known
commands of loyalty long recognized at common law. Our Constitution’s designers
wanted public officials to be subject to the same kinds of fiduciary obligations
that CEOs, trustees and lawyers are routinely held to in the private sector.
Those duties prohibit self-dealing and acting under a conflict of interest.
Therefore, “self-pardoning” or pardoning your closest
associates for self-interested reasons should not pass legal muster, because it
violates the fiduciary law of public office. If the president tries to pardon
himself, he is engaged in blatant self-dealing, transgressing both his oath and
the primary prohibition to which all fiduciaries are subject. If the president
pardons his associates primarily out of a motivation to protect himself, those
pardons would also be invalid as disloyal, and federal courts should probably
allow those prosecutions to proceed notwithstanding the pardon; indeed, even if
a president succeeds in releasing a pardoned criminal, a successor president
would not have to recognize an invalid pardon. The extent to which courts will
entertain these limits on the pardon power of the president is as yet untested
— but courts through the ages have directly enforced the fiduciary duties of
office against public servants. Ultimately, a president is not allowed to put
his own narrow interest over the public interest because he is constrained by
his oath and his office.
The “faithful execution” clause also has implications for
the president’s power to fire executive officials. The Constitution does not
explicitly mention a power to fire. This oversight had to be addressed in the
first Congress in 1789, and thereafter, the president’s unilateral power to
dismiss executive officials became a matter of judicial interpretation. Yet
while the presidential power to remove is, at most, implicit, the fiduciary
nature of the office is explicit. Therefore, firing a special counsel for
largely self-protective reasons would violate the president’s obligation to act
for only the right kinds of reasons. With strong enough evidence of motive or
purpose, a special counsel such as Mueller might even be able to obtain an
injunction to block such an impermissible firing.
To sustain our framers’ vision of a Constitution with
offices filled by public fiduciaries, we must find ways to enforce the
president’s oath and his legal responsibility of “faithful execution.” That
means executive powers that can sometimes look discretionary actually must be
limited by fiduciary principles. Thus, a president faithful to the
Constitution’s original meaning and faithful to the public, rather than his own
self-interest, may not legally issue self-dealing pardons, nor may he fire
executive officials largely to protect himself.
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