We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. Some of us believe that the absence of a limitation for such pardons should carry the day on the constitutional interpretation. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” Others believe that the intent is clear against such self-dealing even if the language is silent. What is notable is that, while we disagree on this interesting historical and constitutional question, we are virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted. This is a good-faith disagreement and I have never argued that the answer is clear. I have tremendous respect for many on the other side of this debate including former Judge Michael Luttig, who just penned a thoughtful column in the Washington Post arguing against such self-pardons. I recommend that you read the column in full but I wanted to respond to some of its more salient points.
Michael Luttig was a member of the United States Court of Appeals for the Fourth Circuit (1991-2006) and was assistant attorney general for the Office of Legal Counsel at the Justice Department (1990-1991).
One of the things that I like about this column is that Luttig is honest about the lack of clarity. He also rejects some of the arguments that I also have previously challenged.
Luttig for example notes that, shortly before the resignation of Richard Nixon, the acting assistant attorney general for the Justice Department’s Office of Legal Counsel tentatively said that there is no power to self-pardon. However, this was a single line without analysis and Luttig agrees that it “can hardly be regarded as authority on the subject.” He also rejects the argument raised by Professor Larry Tribe and others that the meaning is clear from the language in Article II, Section 3 that the president should “take Care that the Laws be faithfully executed.” Again, Luttig admits that this this language is not sufficient to make the case against self-pardons. He notes as I have that “[t]his begs the question just as much as the textual argument made for self- pardons. If the Constitution allows a president to pardon himself, there could be no argument that in pardoning himself the president was not faithfully executing the laws.”