Few Americans could find the Pacific island nation of Vanuatu on a map. Fewer still know anything of its constitutional jurisprudence. Donald Trump could change all that if he exercises the right he claims to have to pardon himself (here). Vanuatu is the only country whose courts have ruled on the validity of a presidential self-pardon, and the merits of their ruling would surely be fodder for editorials, op-eds, and cable television’s
blabbers learned commentators.
Vanuatu’s courts had the unprecedented case thrust upon them thanks to the action of Marcellino Pipite. Speaker of the Vanuatu legislature, in accordance with the country’s constitution he served as acting president whenever the sitting president was abroad. During one period of service a long running trial where he and 13 other parliamentarians were on trial for bribery ended in a guilty verdict against all fourteen. Pipite then promptly exercised the president’s constitutional pardon power, excusing himself and the other defendants from any criminal wrongdoing.
The validity of a Trump self-pardon would surely come before the Supreme Court, and it has long looked to decisions of foreign courts when deciding its cases (here). Indeed, one of the most influential justices of the 20th century, whose acolytes include the current Chief Justice, was a firm believer in looking to decisions of foreign courts for guidance when deciding constitutional issues. Nor did then Chief Justice Rehnquist limit what foreign court decisions should be examined.
“Now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process” (here).
Vanuatu’s Constitution requires senior officials to conduct themselves in a way so as not to compromise “the fair exercise” of their duties, not to “demean” their office, not to allow their “integrity to be called into question,” and not to “endanger or diminish respect for and confidence in the integrity” of the government. The Vanuatu Court of Appeals, the nation’s highest court, had little trouble finding that a self-pardon ran afoul of all these provisions. It thus held the self-pardon was invalid.
A Trump self-pardon would certainly contravene these principles. Where Trump supporters might find succor, and his lawyers a way to distinguish the case, is that these principles are expressly stated in article 66 of Vanuatu’s Constitution, “Conduct of Leaders.” The American Constitution has no similar provision. The reason its drafters did not include such an article is that it was obvious to them that the constitutional order depended upon leaders who observed such principles. Writing them into the text would thus have been superfluous. Whether that omission would give a Supreme Court majority a way to validate a self-pardon remains to be seen.
The decision in the Vanuatu self-pardon case, Vohor v. President of the Republic of Vanuatu, can be downloaded from the court’s website (here). Even if a Trump self-pardon never comes to pass, the decision and the principles of integrity it upholds merit sustained study in a post-Trump America. Indeed, perhaps it is time to follow the Vanuatu example and write these same principles into the American Constitution. That would surely put Vanuatu on Americans’ map.
Thank you for the insightful and timely post! If this does come into fruition, then I am rather curious to see how much weight the S. Ct. will give to a small country like Vanuatu. I glanced over the article regarding what foreign laws the Court have looked at, and I was surprised by the breadth it covered from obvious ones like England and other Western Democracies to smaller nations like Zimbabwe. However, I can imagine the Court asserting that the differences between the two are too great for any adequate lessons to be drawn from Vanuatu.
Glad you liked the post. One would hope in weighing the persuasiveness of a foreign court’s opinion the Supreme Court would look to the cogency of the court’s reasoning not the size of the country where it sits.