by Mitch Kokai
Senior Political Analyst, John Locke Foundation
As for Trump’s pardon power, it is at least arguable that the founders anticipated the possibility that a president might pardon himself. As my National Review colleague Andrew McCarthy, a former federal prosecutor, noted last year: “The Pardon Clause says that while the president may pardon any federal offense, this does not extend to ‘Cases of Impeachment.’ The Framers thus expressly considered a president’s potential use of the pardon power to benefit himself.” …
… 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. …
… 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.”