The Constitution doesn’t allow the president to abuse his pardon power, Mueller’s report says. “Congress has the authority to prohibit the corrupt use of anything of value to influence the testimony of another person,” Mueller wrote, “which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.”
When the Founding Fathers debated the Constitution, they contemplated the very concern Mueller examined: whether a president might abuse his pardon power to obstruct justice or protect himself from investigation. The Founders had a ready answer to that scenario: a president who uses his pardon power corruptly can be impeached.
The Constitution’s framers were used to the idea of official pardons for crimes. Some state governors had pardon powers, modeled after the king of England’s authority to grant mercy. So giving the president the same power to pardon federal crimes wasn’t controversial at the Constitutional Convention, until the very end.
Charles Pinckney of South Carolina included pardons in his proposed list of presidential powers on the convention’s fourth day, May 29, 1787, and no one debated it for months. Without “the benign prerogative of pardoning,” Alexander Hamilton wrote later in the Federalist Papers, “justice would wear a countenance too sanguinary and cruel.”
Randolph finally questioned the president’s broad pardon power on the convention’s next-to-last day, Sept. 15. An early supporter of writing a new Constitution, the 36-year-old Virginia governor had since joined a small group of dissenters who feared the proposed federal government’s broad powers.
So Randolph proposed an amendment to the president’s authority to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachments.” He moved to add, “except cases of treason.” Randolph feared a criminal president might pardon his co-conspirators. “The prerogative of pardon in these cases was too great a trust,” he argued.
But James Wilson of Pennsylvania, one of the convention’s sharpest legal minds, argued that the draft Constitution already included a method for stopping a rogue president. “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive,” Wilson argued. “If he be himself a party to the guilt he can be impeached and prosecuted.” The convention rejected Randolph’s amendment by a vote of eight states to two.
Yet the debate about presidential pardons didn’t end there. George Mason, another dissenting delegate from Virginia, had seconded Randolph’s motion. The main author of the Virginia Declaration of Rights, Mason refused to sign the Constitution, declaring that “it would end either in monarchy, or a tyrannical aristocracy.”