I have a new piece up at TheWeek.com, arguing that the Founders designed presidential pardon power with the idea that presidents would be too ashamed to use that power badly.
A glance at the Federalist Papers tells us two important things about the president’s pardon power: First, that it was expected the power would be used to correct injustices — including cases where the law had fallen too hard upon someone who was properly convicted. Second: The Founders expected the president’s temptation to misuse his pardon power would be tempered by the fact that, well, he wouldn’t want to look like he was misusing his pardon power.
“The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution,” Alexander Hamilton wrote in Federalist 74. “The dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.”
In other words: A responsible president wouldn’t want the public shame of granting an unjust pardon.
Trump’s not really known for his responsibility, though, is he?
James Madison famously wrote: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The idea is that the Constitution is built to check and balance bad behavior.
But in the case of a president who might want to pardon himself for high crimes and misdemeanors, it’s not at all clear the Constitution does that. The Founders were relying on officeholders not to be good, but to want to avoid the public criticism that goes with overt acts of self-dealing. The incentives make sense. They just didn’t anticipate the utter shamelessness of Donald Trump.