Presidential Pardon Power: What The Founders Thought

Before President Trump retreated to Mar-a-Lago, the pundits were debating whether he would — or could, legally — pardon himself for any misdeeds committed in or out of office. Although he’s gone from the White House, the issue is not moot.

Trump faces a number of civil and criminal investigations. He’s also talking about running again in 2024. It’s possible he could be convicted of a crime over the next few years, win back the presidency, claim that the victory vindicates him, and issue a self-pardon. Does anyone doubt that he would do so if given the opportunity?

The Constitution says the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This means Trump could try to pardon himself only for federal crimes, not state crimes.

Some scholars argue that the power to “grant” pardons implies a grantee other than the president and that therefore self-pardons are unconstitutional. I don’t disagree, but this boils down to word parsing. A stronger argument is that such an act flies in the face of the founders’ and our notions of justice.

The founders did not invent the pardon power. It was a prerogative of European monarchs and, in our country, of state governors. The delegates at the Constitutional Convention in 1787 discussed the pardon power on several occasions, though not extensively. They never considered the possibility that a president might attempt to pardon his own crimes.

At the outset of the convention, the attendees debated the merits of the Virginia Plan, a sketch of government drafted by James Madison, in consultation with others, while waiting for a quorum of delegates to arrive in Philadelphia. The Virginia Plan, introduced by Edmund Randolph on May 29th, did not mention the pardon power at all.

On June 18th, Alexander Hamilton, a delegate from New York State, introduced his own plan, proposing a government headed by an executive who would serve indefinitely “during good behavior.” The executive’s powers would include “pardoning of all offences except Treason; which he shall not pardon without the approbation of the Senate.”

Hamilton failed to shift the debate away from the Virginia Plan, but on August 6th, the Committee of Detail, composed of five delegates, submitted a draft of the constitution that gave the president “the power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.” The legalese of the final clause was simplified a few weeks later to “except in cases of impeachment.”

It’s worth noting that neither Hamilton’s nor the Committee of Detail’s conception of the pardon power limited it to federal offenses. The restriction of pardons to “offences against the United States” was added by the Committee of Style and Arrangement, which submitted a revised text of the Constitution on September 12th. The committee’s five members included Madison and Hamilton. The change in wording was adopted without debate.

After the Committee of Style’s report, Randolph moved to exempt treason from the pardon power. In his notes on the convention, Madison summarized Randolph’s argument thus: “The prerogative of pardon in these cases was too great a trust. The President himself may be guilty. The Traytors may be his own instruments.” The delegates also debated whether the Senate, as suggested by Hamilton, should have a say in treason cases. The state delegations voted 8-2 (with one divided) to defeat Randolph’s motion.

One other issue pertaining to the pardon power was raised at the convention. Luther Martin of Maryland suggested that pardons should be allowed only after criminal convictions. James Wilson, a prominent delegate from Pennsylvania, objected to this change, arguing that a pardon prior to conviction might be necessary to gain the cooperation of accomplices. Martin then withdrew his motion.

In sum, the delegates at the convention considered the pardon power in some detail — vis-à-vis impeachments, convictions, the legislative role, and treason. Absent from the debates was any mention of self-pardons. This hardly counts as a tacit endorsement. Indeed, it’s more likely that the idea of a president pardoning himself is so outrageous that it never occurred to the drafters of the Constitution. If it had occurred to them, they probably would have debated it, especially given their concern that the pardon power might be abused.

Madison’s notes offer some evidence for this conclusion. The foremost concern regarding pardons, raised more than once in the debates and again in the states’ ratifying conventions, had to do with treason. What if a president committed treason and pardoned his co-conspirators to escape justice? Responding to this question, Wilson had argued that if a president is party to treason, “he can be impeached and prosecuted.” Of course, if a president were to pardon himself, prosecution would not be possible. So it seems that the idea of a self-pardon was not something that occurred to Wilson, and no one at the convention thought to bring up the point.

After the November 2020 election, Trump refused to concede defeat, and he spread the lie that the election had been stolen. On January 6th, after Trump delivered a fiery speech, his supporters broke into the U.S. Capitol, attacked police officers (killing one), and interfered with Congress’s counting of the electoral votes. The House of Representatives impeached him for inciting insurrection. A majority of senators voted to find him guilty, though not enough to sustain a conviction.

It remains to be seen if Trump will be charged with a federal crime for his role in the riot or his efforts to overturn the election. But if he were to be charged and convicted and if he were to win back the White House, should he really be allowed to pardon himself for the most grievous offenses ever committed by a sitting president?

Some scholars argue that the language of the Constitution does not constrain him from doing just that. It’s hard to believe that James Wilson or James Madison would agree. They wanted a president, not a king.

Illustrations, from above: “Washington as a Statesman” [Washington addressing the Constitutional Convention of 1787″ by Junius Brutus Stearns (1856) and the Assembly Room at Independence Hall, Philadelphia courtesy wikimedia user Antoine Taveneaux.