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Even More on Presidential Self-Pardons
Michael Ramsey

Paul J. Larkin, Jr. (The Heritage Foundation) has posted The Legality of Presidential Self-Pardons (30 pages) on SSRN.  Here is the abstract:

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense. Yet, a question exists whether that “anyone” includes the President. The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election. No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue. In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so.

Clemency was a prerogative of the English Crown. The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts. The Pardon Clause reflects the prerogative nature of that power. Its text contains only two restrictions—one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings—and neither one prevents self-pardons. Supreme Court case law does not justify creating a self-pardon exception. As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives. To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client—the public—and a President can breach that duty by excusing himself from criminal liability. But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power. That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

I think he needs to deal with the "grant" argument, however.

In the Washington Post, former judge J. Michael Luttig reaches the opposite conclusion, without relying on the "grant" argument: No, President Trump can't pardon himself.  (Via Jonathan Adler at Volokh Conspiracy).  From the core of the argument: 

So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power—a power in the sovereign that was little known to the Framers, if known at all.

Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity. There, without so much as a hint of a president's power to avoid criminal liability through self-pardon, they provided that even "in Cases of Impeachment," for which the president can only be removed and disqualified from holding high federal office, "the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.

Though I'm sympathetic to Judge Luttig's bottom line, I find all of these arguments unpersuasive.  As to the first, unless one relies on the "grant" argument, the language of the pardon power is actually pretty clear, as Paul Larkin argues in the article linked above.  Judge Luttig's second argument would seem to exclude not just the President but all executive and judicial officers from the pardon power, which is surely wrong (at least, contrary to the way it's always been read).  And the third argument seems little more than a fancy way of saying he thinks it's a bad idea.

Here's an argument that may be more persuasive.  People of the founding era -- and especially anti-federalists such as Patrick Henry and George Mason -- were particularly concerned about the Constitution's powerful presidency.  One of the worries, expressed at the drafting convention and in the ratification debates, was that the pardon power would allow the President to shield his cronies from criminal liability.  But (so far as I'm aware), no one expressed a concern that a criminal President could pardon himself.  If that had been a plausible reading of the text at the time, it seems highly likely that Henry, Mason, etc. would have made it a central objection.  After all, if one thinks the President's power to pardon his cronies is a problem, surely the President's power to pardon himself would be an even greater problem.  Their failure to make this point suggests an assumption at the time that the text did not give the President this power.