Further Thoughts on the President's Self-Pardon Power
Michael McConnell
[Ed: For this post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor of Law, Stanford Law School, Director of the Stanford Constitutional Law Center and Senior Fellow, Hoover Institution. Thanks to Andrew Hyman for arranging this contribution.]
There have been two serious substantive responses to my Washington Post op-ed on whether the President can pardon himself, which I appreciate.
First, Eric Muller argues in The Faculty Lounge, relying largely on the OED, that because a person cannot “grant” anything to himself, the president’s power to “grant” a pardon cannot extend to himself. The premise is not valid. Two examples. The creator of a trust (called the “grantor”) can grant property to himself as trustee to hold in trust for certain purposes. Moreover, if the terms of a trust empower the trustee to grant certain property to other persons (heirs, perhaps), the trustee can include himself among the grantees. Both of these arrangements are common. Of course, in the latter case there may be self-dealing prohibitions (or not), but they do not arise from the linguistics of the word “grant.”
Second, Brian Kalt argues that the exchange between Randolph and Wilson does not support my conclusion [Ed.: Noted by Andrew Hyman on this blog here]. Here is the exchange, which occurred in the context of a near-final draft of Article II, which read: “he shall have power to grant reprieves and pardons for offences against the U. S. &c.”
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.
Col: Mason supported the motion.
Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
II Farrand, at 626 (Sept. 15, 1787). Randolph’s motion was defeated, 8-2-1.
In the op-ed I interpreted this exchange as follows: “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. They concluded that the remedy of impeachment by the House and conviction by the Senate was a sufficient check on the possibility of abuse.” Kalt offers an alternative interpretation: that Wilson’s statement means that the President could be prosecuted (criminally) after impeachment. This would refute the possibility of self-pardon.
Kalt does not take account of the fact that the term “prosecution” was frequently used at the time to refer to the “prosecution” of the impeachment in the Senate. ( For example, Edmund Burke was described as “prosecuting” Warren Hastings in the House of Lords after his impeachment by the Commons.) When used as part of the conjunctive phrase “impeachment and prosecution,” like the modern phrase “impeachment and conviction,” the latter term more naturally refers to the kind of prosecution or the kind of conviction that follows upon an impeachment, namely senatorial. Thus, at a minimum, we must conclude that Wilson’s statement is not proof against self-pardon. Wilson may well have been saying that impeachment by the House and prosecution in the Senate provide a sufficient check against the possibility of presidential treason, even in the face of self-pardon.
Indeed, I believe that is the most likely interpretation. There is no question that Randolph’s concern was about the use of the pardon power with respect to criminal prosecutions. (The plain language of the pardon clause already ruled out the use of the pardon power to prevent an impeachment.) Randolph believed that, unless the pardon clause was amended, the president would have the power of self-pardon, which he thought would be especially pernicious in the case of treason.
What about Wilson? If Wilson were referring to subsequent criminal prosecution, as Kalt assumes, his comment would highlight Randolph’s concern rather than assuage it. To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation. But if Wilson’s point was that House impeachment and Senate prosecution would be a sufficient check on presidential misconduct, even without a criminal prosecution, his answer would be a logical and complete response to Randolph.
One further point: Wilson is not saying that the president would be impeached and prosecuted for granting the pardon, to himself or to his “instruments,” but rather that he would be impeached and prosecuted for the underlying offense.