John Disney
Testifying in a hearing before the Senate Judiciary Committee on separation of powers issues, Akhil Reed Amar of Yale Law School said one of the basic principles of the rule of law is that “no man can be a judge in his own case.” Asked by Sen. Patrick Leahy, D-Vermont, what that meant about the president’s power to pardon himself, Amar replied, “He has no such power.”
Sen. Al Franken, D-Minnesota, pushed Amar to clarify his reasoning later in the hearing.
“If you can’t be a judge in your own case, you can’t pardon yourself,” Amar said. “In the same way you can’t be a judge in your own case, you can’t be a pardoner in your own case.”
The hearing focused on two bipartisan bills in the Senate aimed at protecting Robert Mueller and future special counsels from being fired by the president without cause. Though the two bills have some different provisions, both provide for speedy judicial review if a special counsel is fired.
Senators peppered a witness panel of four law professors with questions on whether inviting the judicial branch to review executive law enforcement decisions violated separation of powers principles. Amar argued that because the president cannot “make Mueller go away with his pardon pen,” he must retain his ability to fire Mueller under the Constitution, because the special counsel’s role is technically an “inferior officer” position that does not require Senate confirmation. He said if Trump could not fire Mueller, the special counsel would no longer be “inferior” within the meaning of the Constitution.
Eric Posner, University of Chicago School of Law professor and son of recently retired Seventh Circuit Judge Richard Posner, said he was not sure the principle Amar referred to truly exists. But he agreed with the logic, and noted where else it might apply.
“If there is a non-self-dealing principle in the Constitution, then it would forbid both self-pardoning and firing a prosecutor who’s investigating you,” Posner said. “The two things are basically the same.”
Stephen Vladeck of the University of Texas School of Law said the question may not ever play out in real life for political reasons.
“In practical terms, the answer to that question may remain purely academic, because at the point at which the president is purported to pardon himself, I have to think that that’s when the House would seriously consider exercising its impeachment power,” Vladeck said.
One of the bills, S 1735, is sponsored by Sens. Lindsey Graham, R-South Carolina, Cory Booker, D-New Jersey, Sheldon Whitehouse, D-Rhode Island, and Richard Blumenthal, D-Connecticut. The other, S 1741, is sponsored by Sens. Thom Tillis, R-North Carolina, and Chris Coons, D-Delaware.
