Yesterday, President Trump made headlines when he stated that, as President of the United States, he has "the absolute right to pardon" himself. However, the media responded that there is no evidence that Trump can actually pardon himself since no President has ever done so. However, the matter was already fully discussed and written about at large in the Federalist Papers and Madison's notes on the Constitutional Convention. The answer from the Framers of the Constitution is that the President does, indeed, have the power to pardon himself in all cases except impeachment.
In Federalist 69, President Alexander Hamilton, writing to the state of New York, briefly covers the topic of the Presidential pardon, expressing that it applies to every single crime except impeachment and conviction: "A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction." Now, many will still object "but this is talking about crimes for other individuals, not crimes pertaining to the office of the Presidency!" However, Madison's notes on the Constitutional Convention show, beyond any doubt, that the issue was thoroughly discussed and the Framers decided that limiting the pardoning power of the President to all cases except impeachment would ensure that the President could be impeached for his crimes and then properly convicted even if he pardons himself.
In the Constitutional Convention, there was a motion on September 15th to add "except cases of treason" to the limits of the Presidential pardon. The motion was ultimately denied, but the main reason it was motioned was because, in the words of Framer Randolph "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." However, the response by Framer Wilson was that "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." Once again, the motion was denied to add "except cases of treason" to the power of the pardon because Congress already was given the power to impeach the President. So, ultimately, even if the President pardons himself, Congress can still remove him from office and then he can be convicted for his crimes.
This means, therefore, that the President does, indeed, have the Constitutional power to pardon himself, regardless of what past Presidents have done. This is not an oversight or loophole in our Constitution, it is a conscious decision by the Framers of the Constitution with the proper check and balance of impeachment in place to assure that a President who acts illegally can be removed from office, regardless of whether he pardons himself for any crime committed.
Photo courtesy: Wikipedia
Publication date: June 5, 2018