Self-Pardons: A Response To Judge Michael Luttig

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.”

Luttig offers three reasons for reading a bar on self-pardons. First, while the language is ambiguous, it stands “in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power – a power in the sovereign that was little known to the Framers, if known at all.” I am not persuaded on this point, though it is clearly compelling. The same argument can be made in the reverse. If the Framers believed that a president could not benefit from a pardon, it would seem an obvious qualification to state in the text. There was considerable debate over the dangers of a president in usurping or abusing power. Yet, this was never uttered as an implied limitation.  Moreover, the Framers may not have assumed that this power was so “extraordinary.” The King of England was long held to “do no wrong” legally as a matter of immunity. Most importantly, the federal pardon power (as noted with the critique of Professor Tribe’s argument) does not impact or negate state laws. In the early Republic and much of our early history, state law (not federal laws) were the primary sources for prosecution and litigation.  This is not be any means a conclusive rebuttal to the point but certainly is worth considering as a countervailing consideration.

Second, Luttig argues that “the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity.”  Again, as I have previously argued, this point confuses very different provisions with very different functions. Impeachment relates to the status of an officeholder while indictments relate to the individual. A self-pardoned president can still be impeached (and indeed such a pardon be included in a count of impeachment though such controversial pardons tend to occur at the end of a term). Moreover, the same thing could be true of lower-ranked officials like Aaron Burr, who was accused of treason. No one has suggested that a president could not pardon a vice president of treason.  Finally, as noted earlier, a presidential pardon does not prevent prosecution for a myriad of state charges — criminal codes that increasingly mirror the federal code.

Finally, Luttig argues that “a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.” Again, I agree with the sentiment but not the conclusion. I also believe that self pardons offend our sensibilities and constitute self-dealing. However, it does not mean that a president is above the law. Luttig himself acknowledged that the pardon power is part of that law. I recognize that this becomes circular on both sides but it does not significantly favor the constitutional interpretation. After all, the president is not above the law. He can still be prosecuted in state courts. I recognize that this does mean that he is pardoned as to the laws of the United States. However, the Framers may have had good reason not to limit the power in this sense. The Constitution was written as a time of not just political division but political violence. John Adams and the federalists where actively trying to kill their opponents under the abusive Alien and Sedition Acts. Some Framers could well have viewed the pardon power as justifiable absolute in such times. The problem is that the record is virtually silent on the issue, but one cannot presume the intent to ban self-pardons without allowing for the possible alternative intent.

So where does this leave us?  With a really interesting constitutional and history debate that has raged for decades. We can have this debate without claiming certainty and maintaining civility. We could well be on our way to answering this question though I still question whether anyone other than a federal prosecutor would be recognized as having standing on such challenges. I still hope that we do not reach that point but Judge Luttig’s column is an excellent presentation of the arguments in favor of a prohibition on presidential self-pardons.



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