« Saikrishna Prakash: Congress as Elephant
Michael Ramsey
| Main | John McGinnis on Originalism and Alternatives
Michael Ramsey »


A Brief Response to Professor McConnell on Self-Pardons
Andrew Hyman

Regarding the WaPo column by Professor McConnell that Mike Ramsey quoted earlier, that column links to the debate transcript from 1787, and I don’t think that transcript really suggests an ability to self-pardon.  Professor McConnell is technically correct that, “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself.”  But Professor McConnell crucially omits that they only debated the president using the pardon to clear himself by pardoning his accomplices: “Mr. RANDOLPH moved to ‘except cases of treason.’ The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”  According to Professor Brian Kalt, Randolph's scenario was "a treasonous executive pardoning his treasonous lackeys," and Kalt is very likely correct. Shortly after Randolph spoke, James Wilson supported the final language of the Pardon Clause without a treason exception, saying that a sinister president who pardoned his “instruments” could be impeached and also "prosecuted," which of course does not suggest anything about a self-pardon (even in the unlikely event that McConnell is correct that Wilson used the word "prosecuted" to describe prosecution in the Senate rather than by a criminal prosecutor).