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07/29/2017

David Weisberg on Presidential Self-Pardons
Michael Ramsey

David Weisberg comments:

The question whether the president could pardon himself must be answered in the affirmative, because if the Framers intended to exclude such pardons they could have very easily included the requisite language in the Constitution.  “[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  Delete the period and add: “and in Cases in which he himself is accused of such an Offense.”  If that’s what they meant, why isn’t that what they wrote?
 
To argue that the president can’t pardon himself because it would make no sense for a king (who was not subject to the criminal law at all) to pardon himself is to overlook one supremely important fact: in creating the presidency, the Founders were very deliberately not creating a monarchy.  A monarchy is something they were striving to avoid, not to replicate.  Therefore, the fact that a king in some sense could not pardon himself tells us, I think, nothing about what the Founders intended with regard to the president’s pardon power.  Again, why didn’t they include the appropriate language in the document itself?
 
Note:  At NRO, Andy McCarthy and Michael Stokes Paulsen reach similar text-driven conclusions.