Could Trump Pardon Himself?

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The New York Sun

“Rudy Shock” is how the Drudge Report headlines Mayor Giuliani’s assertion that President Trump could pardon himself. To which we commend a reading of James Madison’s notes on the Constitutional Convention at Philadelphia. It turns out that when, in 1787, the Framers considered the pardon, they reckoned the president might, on occasion, be guilty. Yet they voted to leave the power to pardon offenses against the United States solely with him — and unrestricted.

This happened in the constitutional homestretch, on the morning of Saturday, September 15. When the pardon power came up, Madison recorded in his notes, Edmund Randolph of Virginia moved to except “cases of treason.” Wrote Madison, summarizing the objection that Randolph had raised: “The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The traitors may be his own instruments.”

Colonel George Mason of Virginia supported the motion, Madison noted. Gouverneur Morris, though, objected. A delegate of Pennsylvania, Morris said he’d prefer that there should be no ability to pardon treason than to “let the power devolve to the legislature.” Then James Wilson, another Pennsylvania delegate, asserted that it was necessary that the pardon power be available for treason and “is best placed in the hands of the executive.”

And then the famous words: “If he be himself a party to the guilt, he can be impeached and prosecuted.” To which Rufus King of Massachusetts chimed in with the thought that, as Madison put it, “it would be inconsistent with the constitutional separation of the executive and legislative powers, to let the prerogative be exercised by the latter. A legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment.”

Smart fellows, these Founders. In respect of legislative passions, King went on to argue that in Massachusetts, “one assembly would have hung all the insurgents in that state: the next was equally disposed to pardon them all.” Even Rufus King, though, was not without a certain wishy-washiness. Madison notes that King turned around and “suggested the expedient of requiring the concurrence of the Senate in acts of pardon.”

Aaaargh, ga vargle. Madison then — he writes about himself in the third person — “admitted the force of objections to the legislature” but reckoned that “the pardon of treasons was so peculiarly improper for the President” that Madison would “acquiesce” in the transfer of the pardon power for treason to the legislature rather than leave it “altogether” in the hands of the president. He’d prefer advice from the Senate.

Then Randolph announced that he, as Madison paraphrased him, “could not admit the Senate into a share of the power. The great danger to liberty lay in a combination between the President and that body.” Colonel Mason barked that the Senate “has already too much power.” Then the matter was put to a vote. Virginia and Georgia wanted to divide the pardon power, but the rest said no, save for Connecticut, which was of two minds.

Feature that here was a gathering of geniuses. They knew they were writing one of the most important documents since God’s laws were brought down from Sinai. We mortals could tear our hair out the way they noodled over every word of the parchment. They got to a point in respect of the pardon where they were talking about how the president might himself be guilty. Yet even then, they did not move to prohibit a president from pardoning himself.

Does that mean the Supreme Court would countenance President Trump pardoning himself? Not even Nixon tested the question. And the report is that not even Mr. Giuliani suggested Mr. Trump was readying a pardon for himself. As to what he could do in a pinch, though, our reading of plain language of the Constitution is hard put to see where the Founding Fathers ruled out a president pardoning himself. If they’d wanted to, it seems to us, they would have said so.


The New York Sun

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