John Yoo maintains that once he’s president, he can. Rather, he mentions the possibility that the power of forgiveness mentioned in the Constitution has been interpreted as designating a power to forgive someone other than forgiveness. However, he does not rule out this possibility.
He stacks up the game by presenting the argument that pardons must be granted by one person to another as an attempt “to overcome the ordinary meaning of the constitutional text”. But this could also be understood as an argument on the ordinary meaning, historically rediscovered, of this text.
He then turns to the debates of the founding era. The Constitutional Convention, he points out, envisioned and rejected the exclusion of treason from the power of pardon. In Madison’s notes, Edmund Randolph speaks in favor of this exclusion: “The president himself can be guilty. The Traytors can be its own instruments. James Wilson replied, “Forgiveness is necessary in cases of treason and it is best placed in the hands of the executive. If he himself is a party to the guilt, he can be charged and prosecuted. Yoo concludes, “When the Convention had the opportunity to explicitly prevent presidential self-pardon (by excluding treason), it refused.”
This is an invalid inference. First, the Convention did not contemplate an explicit ban on presidential self-pardons: if the power of pardon was understood to include self-pardons – if, that is, they were not considered as a kind contradiction in terms – then adopting Randolph’s amendment would have left them untouched in cases other than treason. Second, it is not clear from the notes that it even occurred to Randolph, Wilson, or any other founder that the power of forgiveness might include self-forgiveness. Like Matthew Franck commented in another round of this debate two years ago, “Randolph may have been thinking only of a traitorous president forgiving his confederates (‘his own instruments’) to protect himself from discovery. Admittedly, this possibility was alarming enough in itself to prompt Randolph’s movement. . . . And Wilson likewise may have thought only of those traitors, and be content that the power of impeachment could reach the grave abuse of using the power of forgiveness to protect them.
Yoo quotes George Mason’s argument against the grace power of the Virginia ratification debate: It was dangerous to give to the president “because he can frequently forgive crimes that were advised to him.” Mason has obviously lost. But his quote goes against Yoo’s position, not in his favor. Even an opponent of the power of forgiveness, seeking to cite an example of the evil it would bring, stopped before suggesting that self-forgiveness was even possible.
Yoo has not (and no one to my knowledge has) offered an example of anyone in the founding era explicitly defending the idea that the president has or should have the power to forgive himself – or of anyone who says explicitly that the president does not and should not have this power. Maybe it’s because his non-existence was taken for granted.