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.

 

 

37 thoughts on “Self-Pardons: A Response To Judge Michael Luttig”

  1. But . . . is it not true that in order for a person to receive a Presidential Pardon they must acknowledge guilt for the charges being made against them?

  2. “If the Framers believed that a president could not benefit from a pardon, it would seem an OBVIOUS qualification to state in the text.”

    Maybe it’s SO obvious that the Framers never imagined that it needed to be stated?

    1. Sorry for the duplicate. I got a strange error message the first time and assumed the comment wasn’t posted. Apparently the same thing happened to “dennis hanna.”

  3. “If the Framers believed that a president could not benefit from a pardon, it would seem an obvious qualification to state in the text.”

    Maybe they didn’t think of stating the qualification because it was so obvious, and none of them imagined that it needed to be stated? Maybe they were, without having to think about it, “virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted”? Are we supposed to dispense entirely with common sense when interpreting the law?

  4. No penalty without a law. In other words, that which is not proscribed is permitted.

    Nulla poena sine lege (Latin for “no penalty without a law”, Anglicized pronunciation: /ˈnʌlə ˈpiːnə ˈsaɪniː ˈliːdʒiː/ NUH-lə PEE-nə SY-nee LEE-jee) is a legal principle which states that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law.
    [ A description and analysis of the principle can be found in Shahram Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Criminal Law Sentencing, 99 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 857 (2009) ]

    It has been described as “one of the most ‘widely held value-judgement[s] in the entire history of human thought'”.
    [ Justice Scalia in Rogers v. Tennessee, citing J. Hall, General Principles of Criminal Law 59 (2d ed. 1960) ]

    Curious is it not that so-called academics and would be legal scholars would not cite, or, at least, mention one the foundations of legal jurisprudence.

    Brevity is essence of wit. Bloviation is essence of blogging, perhaps.
    dennis hanna

    1. Dennis, it seems to me you are attempting to apply a principle, no punishment without a law, which is by definition of criminal law, to constitutional law. The latter specifically outlines, as do the laws that created our federal agencies, the powers that branches, office holders, or agencies have the authority to exercise. It would be absurd to argue that those branches, office holders or agencies can do anything that is not legally forbidden and it is in fact the inverse, they are only authorized to do that which has a basis in the law. The Constitution may or may not permit self pardons, but that principle doesn’t bear on the question one way or the other.

  5. No penalty without a law. In other words, that which is not forbidden is permitted.

    Nulla poena sine lege (Latin for “no penalty without a law”, Anglicized pronunciation: /ˈnʌlə ˈpiːnə ˈsaɪniː ˈliːdʒiː/ NUH-lə PEE-nə SY-nee LEE-jee) is a legal principle which states that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law.
    [ A description and analysis of the principle can be found in Shahram Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Criminal Law Sentencing, 99 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 857 (2009) ]

    It has been described as “one of the most ‘widely held value-judgement[s] in the entire history of human thought'”.
    [ Justice Scalia in Rogers v. Tennessee, citing J. Hall, General Principles of Criminal Law 59 (2d ed. 1960) ]

    Is it not curious that so-called academics and would be legal scholars bent on bloviating failed to mention the foundation, or, at least, one of the foundations of legal jurisprudence.

    Perhaps, it would violate the common sense rule of “keep it simple”, ( k.i.s. ).
    dennis hanna

    1. He wouldn’t be punished for doing it. It would simply be rejected by the courts as not constitutional.

  6. The fact is that Trump should indeed issue pardons to every member of his administration and even himself before leaving office. First, there is no harm to him by attempting a self pardon. As stated by Turley, it would be hard for anyone to attempt a challenge to such because currently he is facing no federal charges/indictments and there would be few that would have any standing. The prosective cases being made currently are on the State side who wants all manner of records but refuses to tell anyone what it is they seem to be looking for, Emoluments is nonsense since once Trump leaves office he would no longer be subject to the Emoluments clause and little could be done even if someone makes a case other then to tell other politicians not to dio the same thing.

    William Barr took the AG job primarily because he was concerned with the criminalization of politics, Anyone actively trying to go after Trump and his administration once he leaves office is not doing so because they think he cpmmitted crimes and is interested in Justice. They would be doing so in order to punish a percieved enemy and make them unable to raise arguments to their contrary again. They are seeking to silence an enemy. It is sad that we may see Trump attempt to pardon himself but it won’t be a black mark against him but a black mark against Democrats for bringing about such a thing out of a blinding rage.

    I agree it is not something that we should ever like to sea, but Democrats have created an age of stupid where it might be something that is needed, not to mention might be a good thing. If there are to be prosecutions against Trump, I can assure you that Democrats and Joe Biden wouold be paid back in full, and then some. Such prosecutions would set up a precedent that will likely result in deep seeded hatred and bloodshed all because Democrats could not accept the results of the 2016 election so they unfairly tried to criminalize and silence opponents.

  7. Turley keeps bringing up “the king can do no wrong” as an argument in favor of self-pardons. This argument overlooks the fact that the Framers very specifically wanted a new democratic government without any king, in which citizens were equal. It would therefore be wrong to assume that they wanted any vestige of royalty or absolute power in their new country–in fact, the very opposite makes the most sense. The framers could not possibly have anticipated someone as uniquely arrogant and unqualified as Trump.

  8. Trump doesn’t need it. Biden does. Trump can simply resign prior to inauguration day and receive a federal pardon from Pence who can as the new President can do the same. To make it even more fun Pence brings in Gabbard and McSally as The First Presidential Team both female. and deny that to the socialists as well. Providing the Supreme Court doesn’t let them keep the positions. At least we would have to military experienced citizens instead of a draft dodger like Biden with ZERO experience and Harris who is subject to change the name to The Red Army.

  9. “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

    Absent a compelling argument for the presumed obvious virtues of self pardoning, the absence of it’s being explicitly included in the constitution means it fails as a both a basic human right or by original intent.

    Hell no!

  10. “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.”
    *********************************
    Luttig is a guy faced with no legally binding precedent and no historically similar situation to lean on. Being unable to argue the law or facts, he inevitably goes to step three which is the hoary furtherance of public policy gambit for which he is as equally qualified as any other reasonably intellectually endowed citizen. In essence, he argues it’s wrong because I think it’s wrong. Interesting, articulately presented but ultimately just he said-she said with no basis besides the credentials of the speaker which are inapposite to the situation.

    1. In essence, JT argues it’s legal because he thinks it’s legal, with no basis besides the credentials of the speaker.

  11. How many angels can dance on the head of a pin? I think it mat be that kind of argument.

    I fully agree it makes no sense that a President can pardon themselves. It would place the position above the law. Except there is a way to remove the President for bad behavior. I also understand that it does not preclude prosecution from a State. Yet, I am also having trouble getting my head wrapped around the idea the President could murder someone in front of the Lincoln Memorial on Federal land and then pardon themselves. The same President could sell out the country for personal gain on foreign land and then once again pardon themself. It makes no sense.

    Personally I do not think President Trump will pardon himself. He may hint at it to drive people up the wall, but I do not think he needs to because he will not be pursued after he leaves. President-Elect Biden has already intimated that he has no stomach for later charges. It would be bad form and could come back to haunt other Presidents at a later date.

  12. “We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. ”

    This opening statement clouds the issue, Jon. it plays the both sides game and makes it seem that every president puts themselves in the position of needing to pardon themselves due to their rampant corruption, which is not the case. Not all presidents are s&*t stains like trump is. Period.

    The reason it’s so challenging with trump is because he is *so* criminal. And his flooding the zone with conflict and corruption runs across the spirit of the constitution in a myriad of ways.

    My own view from the cheap seats is that, no matter what side of the argument legal scholars may side on a president’s ability to pardon themselves may be — there should be some serious restrictions set if it is indeed probable. Let’s start with this: if a president was not prosecuted for a crime while in office *because* they were in office, that offense should not be available to the power or pardon. Just wipe those puppies off the board…

    So trumpy bear shouldn’t be able to pardon himself for being caught up in campaign finance crimes as “individual one”, minimally. Let’s add obstruction from the Mueller report to the list if we’re being fair. And if we really, really want to be fair, let’s take any future election tampering charges on trump that may arise from his ham handed manipulation attempts to overthrow election results in Wisconsin, Michigan, Pennsylvania and Georgia off the table. With a side of Arizona.

    If Trump wants to pardon himself for emoluments violations and profiteering from his own businesses off the government while he was in office, we can talk about that. Probably the best approach there wouldn’t to be to get in an argument about pardon possibilities but rather to just codify into law the requirements that if you run for president you must present your tax returns and put your personal business into trust while in office. Just bar skid marks like trump from even having the desire to run. If the carnival barkers of the world realize running for president with sordid intentions isn’t really something they’d want to get involved in it would go a long way toward preventing the racist and manipulatively divisive douche tractors from even daydreaming attaining the presidency.

    If the pardon power is akin to being ‘the force’ or an ability to right wrongs the courts couldn’t remedy on their own, let’s not tempt the Darth Vaders of the world with the ability to abuse the power.

    Elvis Bug

  13. All men are below the law. All women too. The pardon provision does not exclude a president from pardoning himself. I didn’t promise you a Rose garden.

  14. When I hear about self-pardons I am reminded of the joke:

    There is nothing wrong with masturba!ion. It is sex with someone I love!

  15. So JT has three posts about slef-pardons, but zero on Trump trying to bully the PA legislatures to throw out the election. Also no posts on this twin 45 min lie filled rants.

    1. Not only that selective deafness MollyG, but all filled with errors and his pursuit of vendettas against his perceived enemies.

      1. You are certainly right, unlike the Democrats calling list keeping and retaliation on Trump supporters….

  16. I don’t know if this is really a debate that has been raging for decades. For example, when Obama left office, no one thought he needed to pardon himself, because he had not committed any crimes. This is something that has come up now because, for example, we have a guy who claims to be a billionaire who pays $750 per year in taxes. He also appears to have been involved in international money laundering for years. He also threatened to withhold military aid to a foreign country until they announced an investigation into the son of his political opponent.

    Like a lot of things, this debate is coming up now because Trump is in office, and he has not abided by the norms which have governed most every President in history (well, maybe except Nixon).

    1. “We Are Talking About Self-Pardons Because . . .”

      the Left wields the ugly specter of political “crimes.”

  17. Another good read. Thanks for the insight. I agree that a self-pardon, while arguably permissible, is a bad idea and could have unintended consequences. President Pence should issue such a pardon on January 19 as his first official act

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