Thu. Jun 17th, 2021

President-elect Joe Biden announces his national security nominees and appointees at his transition headquarters in Wilmington, Del., November 24, 2020. (Joshua Roberts/Reuters)

John Yoo argues that once he’s president, he can. He mentions the contrary possibility that the pardon power mentioned in the Constitution was understood to refer to a power to pardon someone other than the pardoner. He does not, however, defeat this possibility.

He stacks the deck by presenting the argument that pardons must be granted by one person to another as an attempt “to overcome the plain meaning of the constitutional text.” But it could also be understood as an argument about what the plain meaning, historically recovered, of that text actually is.

He then turns to Founding-era debates. The Constitutional Convention, he points out, considered and rejected excluding treason from the pardon power. Madison’s notes have Edmund Randolph speaking in support of that exclusion: “The President may himself be guilty. The Traytors may be his own instruments.” James Wilson responded: “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.” Yoo concludes, “When the Convention had the chance to explicitly prevent presidential self-pardon (by excluding treason), it declined.”

It’s an invalid inference. First, the Convention wasn’t considering an explicit ban on presidential self-pardons: If the pardon power was understood to include self-pardons — if, that is, they weren’t considered a kind of contradiction in terms — then passing Randolph’s amendment would have left them intact in cases other than treason. Second, the notes do not make it clear that it even occurred to Randolph, Wilson, or any other Founder that the pardon power could include self-pardons. As Matthew Franck commented during another round of this debate two years ago, “Randolph may only have been thinking about a treasonous president pardoning his confederates (‘his own instruments’) to shield himself from discovery. Certainly this possibility was alarming enough by itself to prompt Randolph’s motion. . . . And Wilson likewise may have been thinking only of those traitors, and contenting himself that the impeachment power could reach the grave abuse of the pardon power’s use to protect them.”

Yoo quotes George Mason’s argument against the pardon power from the Virginia ratifying debate: It was dangerous to give the president “because he may frequently pardon crimes which were advised by himself.” Mason obviously lost. But his quote cuts against Yoo’s position, not in favor of it. Even an opponent of the pardon power, seeking to summon an example of the evil it would generate, stopped short of suggesting that a self-pardon was even possible.

Yoo hasn’t (and no one, to my knowledge, has) offered any example of anyone in the Founding era explicitly defending the idea that the president has or should have the power to pardon himself — or of anyone’s explicitly saying that the president doesn’t and shouldn’t have that power. Maybe that’s because its non-existence was taken for granted.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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