Can Pres Pardon Himself

Donald Trump Russia Investigation: Can President Pardon Himself?
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LAW & THE COURTS
Could Trump Pardon Himself?

By JONAH GOLDBERG June 6, 2018 6:30 AM
(Jonathan Ernst/Reuters)
It’s complicated.
I n conservative circles, few arguments

are more triggering than those that
begin: “The Founding Fathers never
could have imagined…”
There are several reasons conservatives

don’t like this line of reasoning, but chief
https://www.nationalreview.com/2018/06/donald-trump-can-president-pardon-himself-complicated-question/ Page 1 of 7
Donald Trump Russia Investigation: Can President Pardon Himself? | National Review 13/02/2019, 7*36 PM
among them is that it gives license to

progressives to exceed constitutional
restraints. Because the founders never could
have imagined air travel, AR-15s, or Twitter,
the logic goes, we are free to come up with
laws that violate the text or intent of the
Constitution.
The conservative response is that the

Constitution’s guidelines are timelessly
applicable in most cases, and that when they
are not, we should amend the Constitution
rather than read things into it that are not
there. As a rule, I subscribe to this view. But
I am really struggling with the latest
challenge to this worldview emanating from
the White House.
President Trump and his team have staked

out two positions. First, that the president
can pardon himself for any federal crime.
Second, that a sitting president cannot be
indicted while in office for any reason.
Thus, even if Trump did fire former FBI

director James Comey to obstruct the Russia
probe, that couldn’t be obstruction of justice
because the president essentially is the
Justice Department. In an interview with the
HuffPost, Rudy Giuliani went so far as to
claim that even if the president murdered

Comey, Trump couldn’t be indicted for
obstruction without first being impeached
and removed from office.
Now, believe it or not, there are

The idea credible arguments behind both of
that the these claims. The Department of
president Justice has long held as a matter of
policy and constitutional
can’t
interpretation that a sitting president
obstruct cannot, or should not, be indicted,
justice is because the presidency is bound up
predicated in a single person.
on a power As for Trump’s pardon power, it is at

that the least arguable that the founders
anticipated the possibility that a
founders
president might pardon himself. As
did not fully my NATIONAL REVIEW colleague
intend for Andrew McCarthy, a former federal
the prosecutor, noted last year: “The
Pardon Clause says that while the
executive
president may pardon any federal
branch to offense, this does not extend to
have in the ‘Cases of Impeachment.’ The
first place. Framers thus expressly considered a
president’s potential use of the
pardon power to benefit himself.”
When the Constitution was written, there

were only three federal crimes: piracy,
counterfeiting, and treason. In that context,
the pardon power was an important tool of
statecraft. Pardoning is an act of forgiveness,
and one can imagine presidential
magnanimity might foster social peace in a
young nation full of revolutionary hotheads.
The first presidential pardon, issued by
George Washington, forgave two men of
treason during the Whiskey Rebellion.
Here’s my dilemma (and I cringe to write

these words): The Founding Fathers never
imagined that the federal government would
grow into the behemoth it is today. For good
reasons and bad, we’ve set up a vast national
legal apparatus with sweeping police
powers. The government cannot even give a
definitive answer to the question of how
many federal crimes there are today.
(Recent estimates range from 3,600 to
4,500.)
The president retains the power to pardon

anybody who runs afoul of the federal
government. That’s probably a good thing,
given how opportunities to abuse authority
have multiplied along with the number of
federal crimes.
But the founders also imagined that an

assertive and independent Congress charged
with oversight would investigate crimes and
misdeeds by the executive branch. Instead,
we evolved — or blundered — into a system
where the executive branch, in the form of
the DOJ or FBI (established in 1870 and
1908, respectively), investigates itself. Some
Trump defenders have a point when they
worry that Mueller — an arm of the
executive branch — is really acting like a
fact-finding organ for a future (Democratic)
House impeachment committee.
The idea that the president can’t obstruct

justice is predicated on a power that the
founders did not fully intend for the
executive branch to have in the first place.
Also, I’m unconvinced that the president can

use the pardon power on himself. Pardoning
is essentially a judicial act, and as James
Madison wrote in the Federalist No. 10: “No
man is allowed to be a judge in his own
cause, because his interest would certainly
bias his judgment, and, not improbably,
corrupt his integrity.”
I could be wrong, but it seems we are way

outside what the founders had in mind. I
have a hard time believing they would shrug

at a president assassinating an inconvenient
FBI director and then pardoning himself for
the crime.
© 2018 Tribune Content Agency, LLC
NOW WATCH: ‘Here’s Why

Trump Can Pardon Himself’ 29
JONAH GOLDBERG — Jonah Goldberg, a

senior editor of National Review and the
author of SUICIDE OF THE WEST, holds
the Asness Chair in Applied Liberty at the
American Enterprise Institute. @jonahnro
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Donald Trump Russia Investigation: Can President Pardon Himself?

| National Review 13/02/2019, 7*36 PM

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LAW & THE COURTS

Could Trump Pardon Himself?

I n conservative circles, few arguments

There are several reasons conservatives

among them is that it gives license to

The conservative response is that the

President Trump and his team have staked

Thus, even if Trump did fire former FBI

claim that even if the president murdered

Now, believe it or not, there are

on a power As for Trump’s pardon power, it is at

When the Constitution was written, there

Here’s my dilemma (and I cringe to write

The president retains the power to pardon

But the founders also imagined that an

The idea that the president can’t obstruct

Also, I’m unconvinced that the president can

I could be wrong, but it seems we are way

have a hard time believing they would shrug

© 2018 Tribune Content Agency, LLC

NOW WATCH: ‘Here’s Why

JONAH GOLDBERG — Jonah Goldberg, a

SPONSORED CONTENT Recommended by

© 2019 National Review

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