Response to Self-Pardoning

Adam Carrington makes an excellent case against President Trump attempting a self-pardon. Crucially, he does so on the ground of prudence rather than legal argument. (Carrington also provides a gem of a definition for prudence, which is the combination of “right principle and real life.”)

At the risk of being the guy around here who quotes Burke at every turn, I want to raise a different, but compatible, element of prudence in this context. Carrington notes that constitutional and legal scholars have made compelling arguments on both sides of the self-pardon question. I agree, though I side with those who conclude that a president cannot pardon himself. But the most compelling prudential case against a self-pardon is sparing us the concrete resolution of that interesting, but abstract, debate.

In his Speech on Conciliation with the Colonies, Burke observes that it is a mistake “to imagine, that mankind follow up practically any speculative principle, either of government or of freedom, as far as it will go in argument and logical illation.” He meant that abstract principles at their extremes were incompatible with the intrinsic nuances of political life. In that vein: Whether Trump should pardon himself is an interesting but speculative principle that is protected from resolution at the extremes of argument by the simple fact that the Madisonian regime presupposes a people capable of self-government. In other words, the Framers never resolved this question because they could not have imagined a people so infatuated with demagoguery that they would tolerate either a president pardoning himself or his partisans enabling him. Federalist 55 notes that one cannot believe in self-government without assuming the people have a degree—not overwhelming, but adequate—of civic character.

From a constitutional perspective, self-pardon is therefore an angels-on-the-head of a pin question. By the time we get to it, though, civic character is already on shaky ground. The question may be good fun for academics. Not that there’s anything wrong with that  But if the polity pushes it to the point of practical resolution, the natural tendency will be to do so at its logical extremes. That is a problem of prudence as well.

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