//  6/16/18  //  Commentary

By Andrew Kent, Ethan Leib, and Jed Shugerman | Fordham Law School 

In the aftermath of President Trump tweeting last week that "I have the absolute right to PARDON myself," two of this country's most prominent conservative legal academics published defenses of the president's ability to self-pardon. Michael McConnell of Stanford argued in the Washington Post that the Constitution's drafters specifically contemplated and approved presidential self-pardons, while pointing to impeachment as the sole remedy for abuse of the pardon power. Richard Epstein of NYU wrote in the Wall Street Journal that the president's power to pardon is unlimited, except that misuse of the pardon power may subject him to impeachment in Congress. These views are not correct readings of our Constitution.

McConnell does not closely analyze the text of the Constitution, but rather points to an episode at the 1787 Philadelphia Convention, which he reads as showing that the Framers of the Constitution approved of presidential self-pardons.

Yet the notes from the Philadelphia Convention are well known to be incomplete and imprecise – and are not always a reliable source for divining definitive interpretations of the Constitution. The proceedings were held in secret, and for several decades little information about what had transpired was public. Most importantly, the secret intentions of the drafters are not what made the Constitution our supreme law. As Chief Justice John Marshall famously wrote, when the proposed Constitution was released, it "was a mere proposal, without obligation, or pretensions to it." The people of the states met in conventions to debate whether to adopt the Constitution. "From these conventions," Marshall wrote, "the constitution derives its whole authority." That is why the most plausible and widely-accepted version of originalist constitutional interpretation looks not to the intentions of the drafters at Philadelphia but at the objective meaning that the Constitution's words would have conveyed to the American public at the time of ratification.  

But even if the intentions held by delegates at Philadelphia govern, McConnell misreads the extant records and overlooks how later debates during ratification clarified the discussion at Philadelphia. A conversation during the Philadelphia convention among Edmund Randolph, James Madison, James Wilson and others, which McConnell claims concerned self-pardons, was actually about the president's ability to pardon a co-conspirator in a treasonous conspiracy. Edmund Randolph argued that the President should not have the power to pardon for treason because “[t]he President may himself be guilty.” He contended that a power to pardon treason would be “too great a trust. . .  The Traytors may be his own instruments.”  James Wilson opposed Randolph’s proposal to make an exception for treason as beyond the pardon power:  [I]f [the President] be himself a party to the guilt he can be impeached and prosecuted.” 

This response suggests that delegates understood that the president might pardon the co-conspirator, but that the president would himself be subject to impeachment and possibly criminal prosecution as well. The tenor of the conversation thus cuts against the availability of a self-pardon.

But McConnell asserts that by “prosecute” Wilson did not mean a criminal prosecution but rather most likely was referring to prosecution before the Senate in an impeachment proceeding. At Pennsylvania’s ratifying convention, however, Wilson also discussed impeachment and prosecution of the president in a comment that seems clearly to contemplate criminal process against the president:

[The President] is placed high, and is possessed of power far from being contemptible; yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.

Thus a fuller look at the historical record suggests that McConnell’s interpretation of the Philadelphia debate is unlikely.

Professor Epstein, for his part, does analyze the text of Article II, but he errs in his reading of it. Article II of the Constitution vests "[t]he executive power" in the President, enjoins him or her to "take care that the laws be faithfully executed," and requires that the President take a special oath, swearing that he or she shall "faithfully execute the office of President of the United States." In addition, Article II authorizes the President "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Epstein supposes that the pardon power is unconstrained by the President’s Article II obligations of fidelity, and asserts that self-pardoning would be permissible.

We recently helped write a public letter to the President's lawyers, signed by a number of legal academics, which interpreted Article II in the context of the question whether the President has—as some of his defenders like Harvard's Alan Dershowitz have argued—a constitutional immunity to obstruct justice. As we explained there and in a related scholarly paper, when the Founders defined the Presidency as an office bound and restricted by overarching duties of "care" and "faithful[ness]" to the Constitution and laws of the United States, they were invoking well-known limitations on public officers as fiduciaries. In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions. The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty-bound and oath-bound to act with faithfulness to the law and the people, not to his own selfish interests. 

Epstein calls this fiduciary reading of the language of Article II "absurd" and "outlandish," and suggests it comes from "liberal critics" motivated by "[t]he desire to target Mr. Trump." But insults and ad hominem charges are not legal arguments. On the merits, Epstein rejects the idea that the pardon power is subject to duties of care and faithfulness because pardoning does not "involve[ ] executing law." Yet it is not simply law execution that must be done faithfully. The president's oath requires that he or she "faithfully execute the office of the President of the United States.” Moreover, the Constitution is one of the "laws" that the president must "faithfully execute[]", and it is the Constitution of course which grants the pardon power. The president, thus doubly bound by the text to exercise his constitutional powers in a spirit of fidelity to the Constitution, laws, and people of the United States, would violate that trust were he to use the pardon power in a self-protective, self-dealing, or corrupt mannersuch as to shield himself or his family from the Russia investigation. Viewing the Constitution as disallowing the President an unlimited power to act solely for self-protective reasons should not be seen as either liberal or conservative (though severalfiduciary constitutionalists” argue for conservative conclusions)—but simply as the best reading of our Founding document, which rejected monarchy and replaced it with republican self-government.


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