From Henry V to Hillary Clinton: what the history of pardoning oneself could teach Donald Trump

The great Renaissance jurist Edward Coke was fond of telling the story of a young Roman who, having shown himself to be of great intelligence and learning, was offered a position as a judge by the Senate. After giving it much thought, the young man summoned all of his friends, family, and connections to a sumptuous feast, which they took to be a celebration of his newfound power and the rewards that they were all to reap from it. At the end of the dinner, the young Roman astonished them all by announcing that this was not a celebration but rather a farewell: in his new life he would have to forget all of his former attachments, and look upon them all as strangers in order to judge them with uprightness and equity. The judge can only be impartial, Coke’s anecdote suggests, by cutting himself off from the world.

Recent rumours that Donald Trump's aides were looking into the power of the president to confer pardons sent a shiver through the public sphere—in large part because it was clear, from context, that those in line for pardons would likely be for his son, Don Trump Jr, and other close associates who apparently agreed to meet a Russian lawyer on the promise of compromising material on Hillary Clinton, offered as “part of Russia and its government’s support for Mr Trump.” Not only was the President pre-emptively threatening to undermine the legislative and judicial branches of the government, but he was doing so in a case where he could not possibly claim to be impartial. (Trump’s camp has called the claims that the president has sought clarification on the power to pardon “nonsense”.)

Worse than this, however, was the suggestion that President Trump might issue a pardon to himself in response to any indictments coming from Special Prosecutor Robert Mueller. Legal thought about this surreal and paradoxical situation—worthy of the 'Case of the Tarts' in Alice in Wonderland ("Sentence first—verdict afterwards")—goes back to the English Renaissance, when jurists first codified the principle in natural law that nemo debet esse judex in propia causa: “no man should be judge in his own case.” The glaring and unavoidable lack of impartiality was not the only problem here. It was also one of legal form: as the law regulated transactions conducted between two parties, it was simply nonsense for a person to pass judgement on himself. For the same reason, the argument went, a man cannot sue himself, appoint himself to an office, or issue a summons to himself. This was also the reason that a wife could not act as a witness for her husband if he were the accused, as man and wife were legally the same entity, and protesting your own innocence has no legal standing.

This intuitive and seemingly incontrovertible principle of natural law had one very famous dissenter in Renaissance England: William Shakespeare. Shakespeare's brilliant inversion of it can be seen, for instance, in Henry V, where the young king makes a point of issuing a pardon, in front of men he knows to be conspiring against him, to a man who spoke libellously against the crown while on a bender. When the conspirators demand that no mercy be shown to this enemy of the state, the king reveals that they have, unknowingly, been passing judgement on their own case, and have lost any chance of a pardon in their rush to damn others. As Henry says,

The mercy that was quick in us but lateBy your own counsel is suppressed and killed.You must not dare, for shame, to talk of mercy,For your own reasons turn into your bosoms,As dogs upon their masters, worrying you. (II.ii.76-80)

As well as using this plot twist to build tension and create a fire-cracker of a scene, Shakespeare is crafting here a powerful ethical and legal argument. People tried for crimes in law courts are infinitely susceptible—as Trump and his followers have amply illustrated—to crying foul play and accusing the judge and jury of bias. This is problematic for the legal system, because it draws attention to the fact that, for all their pomp and procedure, court trials are in the end just the imposition of one person's (possibly faulty) opinion upon another.

There may be evidentiary standards and expert testimony, but in the end the 'verdict' ('truth-saying') is really just the judgement of a fallible human being. But people who have passed judgement on their own cases cannot possibly claim that they think the verdict unfair. The only perfect legal system, Shakespeare suggests, is one that closes the loop between the accused and the judge, the subject of the law and its interpreter, by making them the same person. In other words, in Shakespeare's brilliant and paradoxical solution, everyone should be the judge in his own case. He was to return to this device many times, making it the centrepiece of his great legal play Measure for Measure.

So perhaps, taking a leaf out of Shakespeare's book, we should allow President Trump to act as judge in his own matter after all. Luckily, he has already passed a very public sentence. After railing against the threat posed to national security by Clinton's negligence in using a private email server for government business, he led crowds chanting 'Lock Her Up'. If there can be no mercy for negligently endangering classified information, then there can be no question of a pardon when actively colluding with a foreign power. Or, as King Henry would have it,

If little faults proceeding on distemperShall not be winked at, how shall we stretch our eyeWhen capital crimes, chewed, swallowed and digested,Appear before us?

The Tragedy of Trump may have set itself up for a truly Shakespearean ending.

Shakespeare in Swahililand is out now in paperback.