In the Russia probe, could Trump pardon himself? - By Elizabeth Holtzman
<< Elizabeth Holtzman, a Democrat from New York, served in the House of Representatives from 1973 to 1981, including on the House Judiciary Committee during the Watergate investigation. >>
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The Constitution’s pardon provision gives the president the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Some argue that because the language is broad and there is no explicit prohibition, presidents may pardon themselves.
But this is simplistic and specious. Presidential self-pardoning would violate the basic structure of our Constitution, and the whole history of the pardon power strongly weighs against the concept.
Presidential power to pardon, including the impeachment exception, is directly modeled on the pardon power of the British monarch. Royal self-pardoning was inconceivable under the British system. Because British monarchs could commit no crime, they had no need to pardon themselves. Self-pardoning, therefore, was never part of the British pardon power — and was not incorporated into the U.S. version. There is no evidence the Constitution’s framers ever contemplated or supported a presidential self-pardoning power, as the debates during the constitutional convention make clear.
When presidential pardoning power was proposed at the convention, an amendment was offered to prevent a president from granting pardons in cases of treason. Supporters thought that would discourage presidents from committing treason. Opponents argued that was an unnecessary precaution, because if a president were “guilty” of treason, he could be “impeached and prosecuted.” The Constitution specifically provides for “indictment, trial . . . and punishment” of a president under the criminal laws, in addition to impeachment.
Implicit in the opponents’ argument was the view that a president could not have any power to pardon himself. Otherwise he could commit treason (or any other crime), pardon himself and then, except for being removed from office through impeachment, go scot-free. The power to self-pardon would thwart any criminal prosecution of the president and stymie full accountability.
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