At AEI, John Yoo: Yes, Trump can pardon himself and his family — That doesn’t mean he should. From the core of the argument:
A straightforward reading of the constitutional text makes clear that Trump could have pardoned anyone indicted in the Mueller investigation, including himself. Article II of the Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This text shows that the Framers made only three exceptions to the pardon power. First, the president can only issue pardons for federal crimes, not state crimes. Second, pardons do not reach civil actions under federal law. Third, the president cannot grant pardons for impeachment. The constitutional text contains no other limitations on the presidential pardon power, and the Supreme Court has never attempted to impose one.
Observers have described the breadth of the pardon power as plenary, unfettered, unqualified, and not subject to checks and balances from the other branches. … While no president has ever pardoned himself, Presidents Richard Nixon and George H.W. Bush considered the possibility. In light of the text of the pardon power and its breadth of use, the Constitution does not appear to prohibit presidents from pardoning their co-conspirators or even themselves.
Critics of this textual reading would suggest that a president can pardon anyone except himself. They could maintain that the “grant” of a pardon implies that the president issues the pardon to someone else; giving it to oneself is not a grant. They might also argue that a “pardon” itself is a legal instrument that can only be given to another, like a gift. [Ed.: see, e.g., here from Andrew Hyman and here from Eric Muller]. These arguments, while weaker than the textual reading in favor of an untrammeled presidential power, demand that we turn to the original understanding for confirmation.
Historical evidence from the Framing cannot overcome the plain meaning of the constitutional text — if anything, it supports this textual reading.
[There follows extensive discussion of founding-era statements that appear to me to be inconclusive at best.]
I remain somewhat unsure on this issue, although I'm leaning more to the Hyman/Muller thesis. Professor Yoo's argument does not seem to me to refute it. I agree that in general plain meaning should prevail over inconclusive historical evidence. But Professor Yoo assumes his conclusion by saying that the constitutional text is plain here. The whole point of the Hyman/Muller thesis is that the text itself indicates a limit on self-pardons through the use of the word "grant" (an action requiring two people, a grantor and a grantee) If the historical evidence Professor Yoo lists is inconclusive, as it seems to be, the textual issue remains (at most) unresolved — it doesn't mean that his interpretation of the text prevails.
Posted at 6:15 AM