Shortly after the news broke last week that President Trump’s advisers were looking into the possibility of the president issuing a pardon to family members, campaign staff, and even himself for crimes he and they may have committed by colluding with Russian government officials or obstructing the investigation into such collusion, I received inquiries from reporters who wanted to know whether a president really could pardon himself. The short answer, I said, is that no one really knows because no president has had the audacity to try.
That does not mean that the arguments for and against a self-pardoning power are equally balanced. As Brian Kalt recently explained, the text of the Constitution does not expressly rule out self-pardons, but given the origin of the word (which connotes a benefit conferred on others) and the fundamental principle that no one is above the law, the case against self-pardons appears stronger than the case for them. Laurence Tribe, Richard Painter, and Norman Eisen spelled out that negative case especially forcefully. Still, given the range of opinion and the paucity of directly applicable precedent, the question remains open.
Meanwhile, one of the reporters to whom I spoke also asked me whether an effort by Trump to pardon himself would spark a “constitutional crisis.” The answer to that question depends on what one means by constitutional crisis. If every important but previously undecided constitutional issue that presents itself creates a constitutional crisis, then sure, a Trump self-pardon would precipitate a constitutional crisis.
However, we do better to reserve the term constitutional crisis for events that risk leading to a breakdown in the Constitution’s mechanisms for peaceful resolution of political conflicts. Judged by that standard, a Trump self-pardon would not cause a constitutional crisis. Unfortunately, other Trump actions may have already placed us far along the road to a constitutional crisis.
What Is a Constitutional Crisis?
Pundits use the phrase constitutional crisis promiscuously to refer to just about any set of circumstances that poses questions to which neither the text of the Constitution nor the case law provides a clear answer. Yet as Sanford Levinson and Jack Balkin explained in an insightful 2009 article in the University of Pennsylvania Law Review, that usage is unhelpfully broad. “Government institutions are always in conflict,” they write. So long as courts and other institutions are capable of resolving or managing such conflict, there is no crisis.
Levinson and Balkin would reserve the term constitutional crisis for circumstances that threaten the breakdown of the constitutional order. They identify three types.
“Type one crises arise when political leaders believe that exigencies require public violation of the Constitution.” Levinson and Balkin give the example of President Jefferson’s pursuit of the Louisiana Purchase notwithstanding his doubts about the constitutional authority for it. To my mind, a more obvious example can be found in President Lincoln’s July 4, 1861 address to a special session of Congress. Honest Abe defended his unilateral suspension of the writ of habeas corpus on the ground that, even if it was unconstitutional, the preservation of the Union and the rest of the Constitution demanded it. He asked rhetorically, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”.
Levinson and Balkin think that Lincoln’s suggestion of emergency power does not quite fit their type one because they characterize Lincoln as offering a “controversial interpretation” of the Constitution, rather than asserting the power to violate it. I respectfully disagree about this particular example, but I do not quarrel with the validity of the category more generally.
So much for type one. What about two? “Type two crises,” say Levinson and Balkin, “are situations where fidelity to constitutional forms leads to ruin or disaster.” Such a crisis occurs because of a (possibly latent) flaw in the Constitution itself. For example, Levinson and Balkin suggest that prior to the adoption of the 25th Amendment—which allows for the removal of an infirm president—such a crisis might have occurred if a president suffered a debilitating illness or injury: he would remain in office but unable to discharge his responsibilities.
Finally, “type three constitutional crises involve situations in which political actors believe that their opponents are taking dangerous and illegal steps that endanger the constitutional foundations of the republic . . . and generally produce . . . extraordinary forms of struggle and opposition that go outside the realm of ordinary political jostling and political brinksmanship.” The struggle that culminated in the Civil War is an obvious example, but Levinson and Balkin also point to various others, almost all of which involve states in the South resisting national laws and policies.
Where Does Self-Pardoning Fit?
A presidential self-pardon arguably falls within Levinson and Balkin’s type two. If the Constitution permits a president to pardon himself, surely that is a hitherto latent flaw in the Constitution. If the Constitution does not embody the principles that no one is above the law and no one may be a judge in his own case, so much the worse for the Constitution.
Nonetheless, standing alone, a constitutional flaw does not a constitutional crisis make. The Constitution contains many flaws. Article I empowers Congress to issue “Letters of Marque”—essentially a license to commit piracy—even though international law has banned them since the nineteenth century. The Article II requirement that a president be a natural born citizen exhibits a form of xenophobia that should be repugnant in a nation of immigrants. The Seventh Amendment right to civil jury trial in cases in which the amount in controversy exceeds twenty dollars should but does not include a cost-of-living adjustment. Et cetera. Such flaws do not give rise to crises unless they undermine the constitutional order itself.
To see why the possibility of a self-pardon does not undermine the constitutional order, consider how a Trump self-pardon would likely work. Suppose that special counsel Robert Mueller concludes that the president has committed criminal acts either by colluding with Russia or obstructing the investigation into such collusion.
As a threshold matter, Mueller would need to determine whether he has the authority to indict and prosecute Trump. Most constitutional lawyers think that a sitting president may not be criminally prosecuted, but a carefully reasoned memorandum by my fellow Verdict columnist Ronald Rotunda challenges that view. The memo—which was written in 1998 for Independent Counsel Kenneth Starr’s investigation of President Clinton and recently unearthed in response to a Freedom of Information Act request by the New York Times—specifically lists obstruction of justice as one of the crimes with which a sitting president may be charged. If persuaded by Rotunda’s analysis, Mueller could seek a grand jury indictment of Trump immediately.
However, if Mueller adheres to the conventional wisdom, he might seek to indict other members of the Trump family and staff, while simply reporting findings about Trump himself to Congress (as Starr did with respect to Clinton). If Mueller were to follow this course, indictment and prosecution would have to wait until Trump left office—whether by completion of one or two terms, impeachment and conviction, or resignation.
Yet regardless of whether an indictment were to come during or after Trump’s presidency, his self-pardon would result in a definitive adjudication. If Trump were indicted on charges for which he had previously pardoned himself, he would argue to the courts that the pardon precludes prosecution. Mueller or his successor in the matter would respond that the self-pardon is invalid. The courts would resolve the issue one way or the other. Thus, there would be no constitutional crisis, as I told the reporter who asked me the question in the first place.
A Fourth Type: Defiance of Unwritten but Necessary Norms
The Levinson/Balkin categories are somewhat fluid. They note how one kind of crisis can transform into another. Nor are the categories exhaustive. I would offer as a friendly amendment a fourth category: Type four crises involve defiance by powerful political actors of unwritten norms that are not themselves legal obligations but that undergird the constitutional system as a whole. In my view, if Congress had acquiesced in President Roosevelt’s Court-packing plan, we would have faced a type-four crisis.
But maybe the Court-packing plan shows that type four is really a subset of Levinson and Balkin’s type two. After all, Roosevelt and the New Deal Congress could have gotten away with Court packing only because of a latent flaw in the Constitution: Article III specifies that there shall be a Supreme Court, but it does not fix the number of justices. That flaw was exploited during Reconstruction (in order to deny President Andrew Johnson an appointment to the Court) and, under different circumstances, might have precipitated a constitutional crisis.
Nonetheless, I would characterize norm breaking as a distinctive type of crisis. It is true that a constitutional norm only exists as a norm because there is no applicable constitutional rule, and that gap could be thought a flaw in the Constitution. However, it is impossible for constitution writers to incorporate in the constitution every practice needed to make the resulting system work. Thus, most norms do not simply patch flaws. Properly understood, norms are an essential complement to formal legal rules. Accordingly, even if the violation of some norms could be seen as generating a type two constitutional crisis, we will better understand the nature of constitutional crises by treating norm breaking as a distinctive type.
Does Trump’s Norm Breaking Presage a Type Four Constitutional Crisis?
Turning back to Trump, would a self-pardon generate a type four constitutional crisis? Even if we assume that a president has the formal authority to grant himself a pardon, there is surely a norm against doing so. Thus, a Trump self-pardon would violate (at least) a constitutional norm. However, for the reasons discussed above, it would not generate a constitutional crisis, because the courts would be capable of resolving any resulting uncertainty.
Unfortunately, Trump is already violating other norms in ways that do threaten a constitutional crisis. I shall mention two.
First, bucking the very strong norm under which responsible political leaders aim to bolster democracy, Trump has repeatedly questioned the integrity of our electoral system. His baseless claim that he would have won the popular vote were it not for voter fraud stands in stark contrast to the actions of every prior president, including the last one to be elected despite losing the popular vote. Concerned about some of what we learned about flaws in the electoral process, George W. Bush signed the Help America Vote Act to strengthen American democracy. By contrast, our current president created a commission to investigate trumped up claims of voter fraud. The likely outcome will be a pretext for voter suppression. A possible outcome would be the general loss of confidence in the electoral process so that in some future closely contested election, vast numbers of Americans do not accept the result and take to the streets. A type four crisis of norm breaking would thus unleash a type three crisis of political violence.
Second, President Trump has repeatedly sought to undermine the free press by labeling nearly all negative coverage of his presidency “fake news.” Of course, every president on occasion expresses dissatisfaction with press coverage. The Nixon administration even attacked the press in general. His vice president famously and alliteratively called the press “nattering nabobs of negativism.” Yet despite such pointed criticism, prior presidents have largely accepted that critical coverage comes with the job. Trump, by contrast, either does not appreciate or does not care about the fact that a vital free press makes democracy possible. In seeking to delegitimate simple reporting of facts, President Trump exercises his own First Amendment rights in the service of undercutting the First Amendment more broadly.
Trump’s norm-breaking will not destroy American democracy overnight. In that sense, his behavior might be said not to constitute a “crisis,” which typically connotes temporal urgency. Yet that very fact may make his behavior especially dangerous. By eroding the norms that undergird our constitutional democracy piece by piece rather than in one fell swoop, Trump may lull the public into believing that he is merely a bad president, rather than the existential threat that he is. We can quibble over whether that does or does not qualify his conduct as sufficient to spark a “constitutional crisis,” but in so doing we ought not overlook the danger he poses.