The Text Where It Happened: Alexander Hamilton, the Federalist Papers, and Presidential Self-Pardons
I argue that Alexander Hamilton offers a previously underappreciated contribution to the debate over presidential self-pardons. Federalist Nos. 69 and 70 have been used in Supreme Court pardon cases and the scholarly literature on self-pardons in a limited and narrow fashion. This limited usage has resulted in a blinkered view of the presidential pardon power, one that understates the limitations on this broad—but not unlimited— executive power. Federalist Nos. 69 and 70 reveal that the framers would likely not have supported a presidential power to self-pardon; such a power would place the president above federal law and render inoperative the people’s ability to hold the president accountable for his or her actions through legal prosecution. Based on Hamilton’s writings in Federalist Nos. 69 and 70, the ability to prosecute the president played an important—albeit secondary— role in checking the power of the president and encouraging appropriate behavior on the part of the nation’s chief executive. Hamilton’s views regarding the necessity of such checks on presidential power jibe with the framers’ views on human nature generally, and when combined with other available evidence— historical, textual, and structural—Hamilton’s arguments offer an important and especially compelling contribution to the case against presidential self-pardons. At a minimum, this article makes a strong case for the inclusion of heretofore under-emphasized and often excluded portions of The Federalist Papers in any analysis of presidential self-pardons and analyses of the pardon power broadly speaking.
