I understand that it is within the legitimate power of a departing US President to issue pardons to officials and others who have been at the wrong end of the law or his displeasure during his regime. It has currently been rumoured that President Trump is intending to pardon himself in advance for the various offences with which he might be charged when he loses the immunities he has as a President. I don't have the arcane knowledge of US law and the US constitution to be able to say whether President Trump would be able to do that – I guess it would become a Supreme Court matter – but it might be of interest to examine some of the philosophical issues the question raises.
I'll begin with a related question: Can we have duties to ourselves? The consensus among philosophers at the moment is probably that we can't have duties to ourselves, or more mildly that we don't. The common position is that morality is a matter of duties to others, of not harming others but helping them whenever we can. What we do about our own selves, our bodies and minds, our interests, our self-development, is commonly thought to be a matter for individual choice. 'It's up to you', we say. And certainly that is the standard liberal individualist position.
Liberals frequently base their moral views on a slogan taken from Kant – respect for persons – but a fuller statement of Kant's view on this says something different. It is: Respect human nature whether in your own person or in that of another. And his examples make it clear that he does think we have duties to develop our own talents as well as helping others to develop their talents. There are common ways of thinking which support Kant. 'I owe it to myself to take this adult education course', we say, or 'I always wanted to study history and now that the children are off my hands I feel I ought to have a go'. Let us agree as a first step then that the idea of duties to self makes sense.
As a second step, we can note that when we fail in a duty to self, or indeed a duty to another person, we might say, 'I can never forgive myself for doing/not doing that'. But if that common experience – of not being able to forgive yourself – makes sense, then logically it must also make sense to be able to forgive yourself. Other people might say to you, 'You are too hard on yourself, it wasn't really your fault', and on reflection you could come to see that in the circumstances they were right. As a result, over time you might come to feel not so bad about what you did or didn't do and this could amount to a sort of forgiving of yourself. But if it at least makes sense to say that you can, in some circumstances, forgive yourself, doesn't it follow that it makes sense to say you can pardon yourself?
Well, not quite! Some important distinctions must be drawn. There are two families of concepts which easily become confused and can lead to wrong decisions or wrong criticisms of decisions. One is the family of what I shall call institutional concepts and in this kind of context they include mercy and pardon. The other is the family of concepts appropriate for personal life and they include forgiveness and compassion.
To give an example, which I might develop on another occasion, Kenny MacAskill was criticised for allegedly showing compassion towards Megrahi, on the grounds that it is not appropriate for a Justice Secretary to act on personal feelings and Megrahi didn't deserve compassions anyway. But, in fact, MacAskill was showing mercy rather than compassion – he was shortening the sentence of a dying man, an accepted exercise of mercy in Scots law. I do not want to get into the rights and wrongs of that decision here but I do want to insist that mercy and pardon belong to a different family of concepts from forgiveness and compassion.
The institutional concepts can be invoked only by those authorised to do so. If a footballer commits some sort of serious offence on or off the field his fans may be willing to forgive him but only the FA can pardon him – let him off the usual penalty; or show mercy – decide that from their detailed investigation there were mitigating circumstances and the usual punishment will be lessened. Of course, the institutional concepts are sometimes used in a loose or metaphorical way, as when we might say to a friend who turned up late for a date 'I'll pardon you this time'.
Pardons are often issued by the appropriate authorities for reasons of expediency. For example, someone convicted of spying might be released in order to secure the release of someone convicted by the other side. Again, pardons are sometimes also issued in the interests of reconciliation, as perhaps in Northern Ireland at the end of the troubles.
Pardons can, of course, create feelings of injustice. For example, some families in NI might feel anger that the murderer of someone in their family has been shown mercy or even pardon. Nonetheless, offering pardon is something which can have political merit – it can be given a utilitarian justification, but the procedure can be politically controversial.
If we return finally to the question of whether President Trump can pardon himself, I have suggested a way of approaching it. Trump is certainly authorised to issue pardons. He occupies the appropriate constitutional office and can legally issue pardons. And has indeed done so.
But can he pardon himself? We could perhaps draw a (pretty blurry) distinction between Mr Trump as a private citizen, say as a business man, and as ex officio the President. A lawyer might then be willing to argue that the President in his institutional capacity is able to pardon what Mr Trump did as a private citizen. But what if it is alleged that there are serious and illegal offences which the President committed in his official capacity as President? Well, that came up at the unsuccessful impeachment inquiry.
My own view, and many will disagree, is that the question of whether the President can pardon himself should be left to highly-paid lawyers and poorly-paid philosophers. The expedient move would be to let the whole thing drop, to allow Trump to vanish into history. Publicity is his oxygen and it will get a huge boost and might also fuel unrest among the surprising numbers of his fanatical supporters if there is an attempt to disallow his self-pardoning and to prosecute him.
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow