Executive Branch Legal Process and the Self-Pardon

Bob Bauer, Jack Goldsmith
Saturday, January 9, 2021, 3:08 PM

Trump could consult the Office of Legal Counsel, the White House Counsel, personal attorneys—or no one at all.

President Donald J. Trump disembarks Air Force One in New York State (Official White House Photo by Shealah Craighead/https://flic.kr/p/2khg4ds/Public Domain)

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It remains a possibility that President Trump will pardon himself before leaving office. So perhaps it is useful to reflect on the legal advice that the president might, or might not, seek or receive on this question, and the potential consequences of the choices open to him.

No president has issued a self-pardon. No judicial decision has discussed the issue. The pardon power in Article II is qualified in only two ways: It is limited to federal crimes, and it cannot be used “in Cases of Impeachment.” Some scholars infer from this structure—the silence about self-pardons, and the express exception closing off pardons as a defense against impeachment—that self-pardons are allowed. Others argue—based on founding history, or the bilateral nature of the act of pardoning, or the fact that someone removed from office by judgment of impeachment can “nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”—that self-pardons are not allowed. There is nothing close to a scholarly consensus on self-pardons. The truth, as Keith Whittington notes, is that “validity of a presidential self-pardon is an issue of genuine uncertainty.” (In our recent book on reform of the presidency, we take the position that Congress should explicitly ban self-pardons, which would help shape the battle that this president or a future one may take to the courts.)

But the executive branch itself has expressed a view. Richard Nixon’s aides discussed a self-pardon on Aug. 1, 1974. J. Fred Buzhardt, Nixon’s special White House counsel for Watergate, advised Chief of Staff Alexander Haig that a self-pardon would be lawful. (It is unclear whether the legal analysis for this conclusion came from a two-page memorandum drafted by Nixon’s lead Watergate attorney, James St. Clair, or from research done by Buzhardt himself.) Three days later, on Aug. 4, five days before Nixon resigned on Aug. 9, the Justice Department’s Office of Legal Counsel (OLC) wrote an opinion to the deputy attorney general on various matters related to a pardon for a president. OLC stated: “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” The opinion contained no further legal analysis on this point. But this ruling was important enough to be included in the summary description at the top of the opinion. The opinion appears to have been in response to a question from the deputy attorney general, and the issue was obviously raised in connection with Nixon’s deliberation on the matter. Indeed, the OLC opinion addressed many of the issues discussed in the White House on Aug. 1.

If Donald Trump pardons himself, he will thus do so contrary to the 46-year view of the Department of Justice that the pardon power does not extend to self-pardons. Unless, that is, his OLC revisits the question and rules otherwise. OLC will not offer its opinion unless asked. And Trump is not obligated to seek OLC’s views. Nor is he in any way constrained by the 1974 OLC opinion, or by any new opinion issued by OLC. Trump is also not required to seek the views of his White House counsel or, if he does, to assign any weight to it.

In short: Article II of the Constitution gives the president the final say for the executive branch on the validity of a self-pardon, and he can seek legal advice (if any) from anyone he likes. And yet whether Trump seeks and receives any legal advice, and the legal advice he receives, and from whom, will be consequential for how the validity of the self-pardon is viewed by later actors, including the next Justice Department and the courts that consider its validity.

The first question is whether Trump will seek legal advice before deciding whether it is lawful to pardon himself. He basically has three options: Ask the Justice Department (that is, OLC) for its views (directly or through the White House counsel); ask White House Counsel Pat Cipollone for his views, independent of what OLC thinks, or in addition to what OLC thinks; or ask some private attorney—Rudy Giuliani, Sidney Powell or Jay Sekulow, for example.

Of all the avenues open to him, Trump would gain the most legitimacy for a self-pardon if he asks OLC for its views and it opines that he can do it. OLC has expertise in this area, and it is the home of the original view about self-pardons. Among the three sources of legal advice referenced above, OLC is likely to write the most thorough and credible opinion on the matter. If OLC writes a thoughtful opinion that explains why its original (and largely unexplained) judgment was wrong, that would carry the most weight in support of the self-pardon—before the public and before courts. (We do not claim it would carry a lot of weight, only more weight than the other sources of legal advice. Any reversal of the original position, especially if produced within days of the end of the presidency for an incumbent in Trump’s imperiled position, would suffer from a deep threshold of skepticism.) The risk for Trump, though, is that OLC is the most independent of the three legal actors, and the least likely of the three actors to depart from the department’s 46-year view. If he asks OLC for its views and it upholds the traditional view that a self-pardon is not permitted, that leaves Trump in the worst place, both legally and politically.

At the other extreme is a legal opinion from a private attorney. This would give Trump the least legitimate support of the three sources. Skirting the ordinary governmental process for advice on high questions of constitutional law and seeking advice from a private attorney is by definition self-serving, and will be viewed that way by all legitimate actors. It is not clear at this time what legal support is even available to him. The top firms and most distinguished constitutional lawyers are likely to pass on this representation. And it is fair to say that an opinion from Rudy Giuliani or Sidney Powell would be, at best, useless, and, more likely, highly self-defeating. Even if Trump does locate a quality attorney with experience in constitutional law who writes a credible opinion in support of a self-pardon, the opinion will be viewed by everyone as what it is: Trump buying the legal advice he wants to hear, in disregard of a 46-year Justice Department position.

And of course, matters are worse yet if Trump pardons himself without even seeking legal advice.

That leaves the role of the White House counsel, Pat Cipollone. Cipollone has a number of options here.

At a minimum Cippollone should urge the president to carefully consider the risks of disregarding the standing Justice Department view. The main risk, as Benjamin Wittes noted recently, is that “the former president will have taken a position that radically outflanks that of the traditional guardian of presidential power.” A favorable and credible OLC opinion in favor of a self-pardon might not count for much before courts, which would owe no deference to OLC’s change of mind on the self-pardon. But if Trump pardons himself without seeking OLC’s views, he is in the weakest possible position (whether or not he seeks advice from private counsel). Cipollone should do whatever he can to ensure that the president fully understands this point.

If asked, Cipollone should at least be clear, and leave no doubt in the official records, that the president faces risks in pursuing a self-pardon. He should also, we think, urge the president to ask OLC for its current views on the matter (as well as the risks of a possibly adverse opinion from OLC). This would be appropriate given the cursory treatment of the matter by OLC in 1974. And there is a precedent for seeking refreshed OLC views in a closely related context. In 2000, OLC wrote an opinion to Attorney General Janet Reno—one presumably sought by her—that affirmed with extended analysis OLC’s adherence to its 1973 opinion that the president was not amenable to indictment or prosecution while in office.

Alternatively, Cipollone could offer his own view of the matter without seeking OLC’s position (or Trump could seek his advice and ask him not to consult OLC, and Cippolone could comply). We believe Cippolone would be ill advised to opine on the matter without seeking the Justice Department’s views. A legal opinion from him in this context in support of a self-pardon would not be much more valuable than a private attorney’s opinion. Even assuming that Cipollone wrote a credible opinion, neither he nor his office is expert on this matter and his office is not typically charged with making these high-stakes constitutional law interpretations. So, at a minimum, the opinion would be the product of a suspect process. Even if Trump expressly agreed with the Cipollone opinion as a basis for the self-pardon, the self-serving circumstances in which the advice was sought and given would weigh heavily against giving it any weight in the future.

All of these considerations should have a direct bearing on Cipollone’s responses to the choices that Trump makes. If Trump decides to pardon himself without OLC review or any legal advice, or on the basis of a private lawyer’s opinion, Cipollone has his own choice—an ethical choice—to make. Should he remain in his post while the White House prepares the self-pardon and the public announcement? If he does, he would be rightly expected by Trump to help with these preparations, including the public defense. If he is on the job, he is on the job: In normal cases, White House counsels are expected to give their best advice but also provide legal support regardless of whether their views prevail. They do not have the ethical option to pick and choose the issues on which to work, declining to engage with positions they find distasteful. Cipollone would face the question whether he should remain at his desk and aid the president in pursuing, without credible executive branch process or legal support, “a position [on self-pardons] far more radical than the executive branch ever has on this matter, [and] in contrast with a long-standing Justice Department position,” as Wittes has put it.

The answer, we believe, is that he would be justified in resigning over the matter (and one of us has argued that Cipollone should have considered resigning over Trump’s relentless attacks prior to Jan. 6 on the legitimacy of the election). Resignation is appropriate not just because Cipollone might wish to disassociate himself from the president’s conduct. That may be a reason he would resign, and it could be a powerful personal motivation, but it is not the core ethical reason. As counsel to the president, charged with institutional responsibilities to the presidency and not personal representational obligations to this president, Cipollone should not be a party to a president’s indifference to executive branch legal process and credible sources of legal guidance in this highest-of-stakes constitutional context. By staying on the job, he would lend the authority of his office to a president’s unprecedented constitutional power play to avoid legal accountability. A White House counsel should be loath to do this at any time—but especially now, for this president, who well before the appalling events of this past week has displayed persistent indifference to (and often contempt for) constitutional law and norms. If he continues to deliberate on his course of action, Trump’s issuance of a self-pardon in the face of the 1974 opinion and without further OLC review may be a tipping point.

(We say that Cipollone would be justified in resigning over this matter rather than that he must resign over the matter, as hypothesized. The context is truly unprecedented and fraught, and we do not have anything approaching full information about the serious difficulties he faces in counseling Trump about this matter and who knows what others. The decision to resign in these contexts always involves an intensely personal element and a difficult judgment about trade-offs involving personal principle and ethical commitments, on the one hand, and pragmatic considerations about the likely consequences of resignation, on the other. Those consequences could well include the loosening of a disciplining constraint at a dangerous time. In this connection, we note that CNN has reported that Cipollone is “considering resigning” after the events of Jan. 6 but that he “has been urged to stay for the good of the country by members of the Senate and the Cabinet.”)

Should the OLC review the 1974 opinion and reverse it, the issue for Cipollone is different. If the new OLC opinion was credible and well reasoned, and if he believed it was developed in good faith and without White House pressure or direction, Cipollone could conclude that (on this dimension, at least) he is justified in staying in place until Jan. 20. Of course, it is unlikely that an opinion reversing a position of decades in a matter of days (if that were the case), as a president scrambles to save himself, would have meaningful credibility and provide Cipollone with much solace or cover in choosing to stay on. But his choice in that case would be more personal than ethical.

These considerations highlight two general lessons about executive branch lawyering. The first is that formal power isn’t the same as actual power when it comes to the president’s prerogative to interpret the law for himself in executing the powers of his office. Trump has the exclusive formal power to decide the legality of self-pardons. But he is in the worst position of all if he decides this matter on his own or on the basis of personal counsel, and is in a less bad, but very far from impregnable, position if he is able to secure a credible opinion from OLC. Second, and relatedly, process matters. How a legal decision is reached within the executive branch (Did it adhere to ordinary process rules? Who sought the opinion, and why, and how? And did the legal opinion make credible, sober arguments with adherence to professional craft values?) matters a lot to its perceived legitimacy later. That said, it would be very hard for any legal opinion justifying a self-pardon under these circumstances to be taken seriously. We are noting only that some approaches are less bad than others.

Putting the two points together, and perhaps stating the obvious: If at a time when fidelity to constitutional process and the rule of law is as important as it has ever been, Trump brushes aside all process and due deliberation and seeks to pardon himself, he will come before the courts in the weakest possible position.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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