It used to be a fundamental article of faith among American conservatives that the Constitution can only be understood in the context of the Founders’ original intentions. So, is it reasonable to believe that the Founders intended a president to have the power to pardon himself?
The Constitution gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Those who argue in favor of the president’s ability to pardon himself contend that this empowers the president to pardon himself in all cases whatsoever, excepting if he is actually impeached by Congress. This is a view that the Founders would not have understood and that is at odds with the Anglo-American constitutional tradition of limited government that gave birth to the United States Constitution.
First of all, one must understand this: The United States Constitution was written and ratified by people who had a long tradition of working to limit the power and prerogatives of the state and its executive. The English barons who compelled King John to sign Magna Carta in 1215 limited the monarch’s authority and declared certain liberties of his subjects to be beyond his reach. The 1689 Bill of Rights further limited the monarch’s authority. Then, when Americans declared their independence in 1776, the bulk of the Declaration consisted of a lengthy enumeration of traditional English liberties that King George III had violated, “all having in direct object the establishment of an absolute Tyranny over these States.”
This is the context in which the Constitution was drafted and ratified. The Founders’ intent was to create a constitutionally-limited federal government under which their liberties would be secure. Their distrust of executive power led them to vest a relatively larger share of their new government’s power in the more democratic legislative, rather than the executive, branch. In case anyone was in doubt concerning their intent, they made it explicit in the Tenth Amendment: All the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If original intent matters, one should be suspicious of any interpretation of the Constitution that places broad powers in the hands of the president—of any president. Conservatives used to agree with this.
More specifically, what was the purpose of restricting the president from granting pardons in cases of impeachment? British and American sources agree that the purpose of placing impeachments beyond the executive’s power to pardon was to guard against corruption and abuses of power. William Blackstone, in his Commentaries on the Laws of England (1769), noted that the monarch could not grant pardons in cases of impeachment “so as to impede the inquiry, and stop the prosecution of great and notorious offenders.”
Likewise, Supreme Court Justice Joseph Story explained in 1833 that the power to pardon “shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service…. It is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct.” Public servants were not to be above the law and no executive has the constitutional right to interfere with investigations into their conduct. A self-pardon, or a pardon of others aimed at derailing a thorough investigation of possibly impeachable offenses, is thus contrary to the Founders’ intent.
So, we see that the Founders would have considered a self-pardon an abuse of power. No, the President of the United States cannot pardon himself. This should be obvious to any honest individual who examines the Constitution and the circumstances of its ratification. Indeed, the very notion of one being able to “pardon” himself is an offense against language.
Americans in 1776 had a word for executive abuse of power: tyranny.
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