The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”

Charles I, triple portrait by Anthony van Dyck

The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.

Execution of Britain’s King

In the midst of the English Civil War, Parliament charged King Charles I with treason, murder, and other crimes of tyranny. The king claimed the High Court of Justice had no authority over the monarch, but the judges disagreed. They tried Charles and found him guilty, and he was executed on January 30, 1649.

The execution of King Charles I

No English king had ever issued a “self-pardon” — the idea would have been laughable — and Charles did not try. But his trial and execution still defined the pardon power. They established that no executive power can protect the king against judgment in court for his own crimes.

Assumptions about the Pardon

In 1660, Parliament restored the monarchy, placing Charles’ son on the throne as King Charles II. But belief in the law’s and Parliament’s supremacy over the king remained. And Parliament confirmed that supremacy once and for all a few decades later, when it overthrew and replaced another monarch, James II, in the Glorious Revolution of 1688.

None of these assaults on royal power disrupted the monarch’s authority to grant pardons. Charles II granted many pardons, and so did nearly all his successors — including George III, who ruled during the American Revolution and the Constitutional Convention. Even today, Queen Elizabeth II retains the power to pardon.

King Charles II

Starting in the 1600s, then, English law included the following principles:

1. The monarch has authority to grant pardons.
2. The monarch cannot use any executive authority to escape the judgment of the courts for his or her own crimes. (In other words, not even the monarch is above the law.)

These two principles would contradict each other if the monarch could “self-pardon.” But the Anglo-American world of the 1600s and 1700s saw no such contradiction. That tells us people of the time assumed “pardon” meant legal forgiveness granted to another, not to oneself — not to the officer granting the pardon. After all, the pardon had always been used that way. With that understanding of “pardon,” the courts’ power to try and even execute the monarch existed side by side with the monarch’s power to grant pardons, with no contradiction.

The Long Parliament’s Heirs

The Framers of the U.S. Constitution followed in the footsteps of the civil war Parliament — known as “the Long Parliament” for its twenty-year term. They embraced its claims of limited executive power and the supremacy of law. But they also gave the President the power to pardon. If they’d thought “pardon” included “self-pardon,” they would have faced the conflict described above. Yet the Framers neither imagined nor discussed a conflict between the pardon power and the law’s supremacy over the executive — at least, not in the Federalist Papers or any other record we have.

That silence speaks volumes. It tells us the Framers shared the Anglo-American world’s assumption that “pardon” means legal forgiveness granted to another.

The Framers of the U.S. Constitution

Core Values and the Limits of Impeachment

The Framers adopted the English system of impeachment too. They gave the legislature authority to remove judges and government officials, including the President. But they deprived impeachment of the key weapon wielded by criminal prosecution: the power to take life and liberty. That they left to the courts. If the President could “self-pardon,” however, he could avoid those criminal consequences altogether. He could order murders on federal lands — the capital and the territories — and commit any number of other federal crimes, without fear of criminal prosecution. He could block impeachment by arresting members of Congress. He could even foment insurrection in the capital to hold office past his term.

That would have violated the Framer’s core values. Like the Long Parliament, the Framers meant to end tyranny, not empower it.

The Framers authorized the President to pardon others. They did not add a “self-pardon” to the Constitution.

See also:

• History Tells Us Congress CAN Impeach the President After His Term
• Trump May No Longer Be President

Images:

• Charles I in Three Positions, (1635-36), Anthony van Dyck
• The Execution of Charles I of England, c. 1649, unknown artist
• Charles II of England in Coronation robes, c. 1661-1662, John Michael Wright 
• The Constitution, 1936, Barry Faulkner

© 2021 by David W. Tollen