The Self-Pardon?

Written back in June at Lawfare, Jack Goldsmith provides a very useful summary of various views on the legality of the self-pardon. The difference between the legalistic arguments he cites and both my argument and Adam Carrington’s argument illustrate well the difference between the the politics of constitutionalism and the Constitution as a legal document. The lawyer’s approach tends to be how to interpret the Constitution such that pardoning is either legal because constitutional or illegal because unconstitutional. Our approach begins by thinking about how to interpret the pardon power in terms of its function within a constitutional order. On the basis of that assessment, we judge the compatibility of the self-pardon with that function.

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