Unlearning The Constitution: University President Declares That Biden Can “Unpardon” Trump

We have repeatedly discussed how legal experts over the last four years have adopted ever expansive interpretations of statutory and constitutional provisions to argue that President Donald Trump could be indicted or impeached on a myriad of different grounds. This includes the reliance on interpretations long rejected by the Supreme Court.  Some issues are manifestly closer like the long-standing question of presidential self-pardons. While I have long maintained (before the Trump Administration) that a president can self-pardon, I have always said that this is a question with good-faith arguments on both sides. Recently, however, experts have brought the same claims of clarity on this question to assure the public that the argument for self-pardons is “incoherent and incompatible” with the Constitution. Ken Gormley, president of Duquesne University, is one of those who supported impeachment and rejected any basis for self-pardons. He has now however gone one better and claimed that Joe Biden can “unpardon” Trump if he does grant himself a self-pardon.

The Washington Post appears to have dispensed with any notion of balance in running repeated and often redundant columns against self-pardons with little discussion of the opposing views. It has now added this column on an interpretations that is demonstrably at odds with the history, language, and purpose of presidential pardons. It does not matter. It is anti-Trump and thus there is a sense of Trumpunity from the obligations of accuracy or balance, a long-standing problem at the Post.  It reminds me of the past argument by Harvard Professor Noah Feldman (who testified with me at the impeachment hearing) that President Trump was not really impeached after he was impeachment. That argument was at least based on a specific (if unsupported) technical claim of procedural completeness. This is simply an argument based on a type of “extraordinary times demand extraordinary interpretations.” The meaning of the pardon clause does not change by sheer will or whim.

In the ultimate understatement, Gormley writes that unpardoning someone “might sound strange, even extra-constitutional.” It certainly does. Indeed, it sounds entirely absurd. Gormley admits that “[c]ertainly, there’s nothing in the words of the Constitution or in historical precedent that speaks of undoing a self-pardon.” However, he insists that is is “because there’s nothing that authorizes a self-pardon in the first place.”

I will not repeat the basis for self-pardons in prior writings (here and here and here and here). However, even those who disagree with the basis for self-pardons have not gone as far as Gormley in claiming the right to unpardon predecessors. One could point to the decision in 2008 when President George W. Bush revoked his own pardon to Isaac Robert Toussie, a real estate developer convicted of mail fraud. The reason was that Bush learned that Toussie’s father was a major Republican donor and Bush wanted to protect the integrity of his office. However, he revoked the pardon the next day on the grounds that the pardon attorney had not signed the grant of clemency. Even that was controversial but it is a very different matter than revoking a previous and completed pardon.

The Framers understood that the pardon power was effectively absolute. Indeed, figures like George Mason opposed ratification because “the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

The idea of unpardoning individuals runs counter to the intended impact of pardons to clear individuals of continued threats or impediments due to an alleged crime or a past conviction. In Ex Parte Garland concerning a former supporter of the confederacy who was barred from practicing in the federal courts. Justice Stephen Johnson Field “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” He added

“[T]he inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

Gormley is suggesting that you can enjoy those benefits but suddenly have the penalties returned by a successor president. It would defeat the historical and logical purpose of a pardon.

To adopt such a view would requiring unlearning both the constitutional language and history underlying presidential pardons.

 

 

99 thoughts on “Unlearning The Constitution: University President Declares That Biden Can “Unpardon” Trump”

  1. “Bernie Sanders: COVID Relief Package Is “Totally Inadequate” for “Unprecedented” Economic Crisis”

  2. Trump is 100% correct that the American people deserve more than a $600 stimulus payment. And it should have happened months ago. Shame, shame on Pelosi, Schumer, Ron Johnson and rest of the plutocrats…

    “Donald J. Trump
    @realDonaldTrump

    Why isn’t Congress giving our people a Stimulus Bill? It wasn’t their fault, it was the fault of China. GET IT DONE, and give them more money in direct payments.

    11:18 PM · Dec 19, 2020·Twitter for iPhone”

    https://twitter.com/realDonaldTrump/status/1340527057151930369

    1. The House approved another stimulus payment months ago. McConnell refused to take it up. Don’t pretend that Pelosi and Schumer are to blame here.

      1. Pelosi and Schumer are partially to blame. They should have take the earlier deal rather than going forward with their own bill which they knew would not get through the Senate. People have now had to wait too long and we’ll be seeing and feeling the fallout over the course of the next year, or longer.

        Back in early October:

        “Stimulus Update: Mnuchin Says Next Bill To Include $1,200 Checks ‘If There Is A Deal,’ Offers Pelosi $1.6 Trillion”

        https://www.forbes.com/sites/sarahhansen/2020/10/01/stimulus-update-mnuchin-says-next-bill-to-include-1200-checks-if-there-is-a-deal-offers-pelosi-16-trillion/?sh=89d66dc2af5f

        1. Nothing stopped McConnell from passing an amended bill 6 months ago and going to reconciliation, except for the fact that he wasn’t interested in doing that.

          1. Pelosi is owned by the China Communist Party as is Biden, Schumer, yada yada yada. China gave us the Wuhan virus and Democrats responded by kneeling to China and killing Americans viz a viz lockdowns. Fact check that on CNN and if you can’t find it, that means its true

        2. What else was stuffed into that original deal that the Democrats refused? Don’t just share one side of the story and expect to be taken seriously. If there is a sacrifice to consider, explain the trade off.

      2. The bill to which you refer had billions in bail outs to corrupt a debauched cities, counties, and States run solely by criminal Demonkraps probably like yourself.

      3. Pelosi admitted it was held up until after the election. So did Durbin and Bernie Sanders. They said screw the people and placed a bet on the blue wave so they could get all their other nonsense included.

          1. Back in early October:

            “Stimulus Update: Mnuchin Says Next Bill To Include $1,200 Checks ‘If There Is A Deal,’ Offers Pelosi $1.6 Trillion”

            https://www.forbes.com/sites/sarahhansen/2020/10/01/stimulus-update-mnuchin-says-next-bill-to-include-1200-checks-if-there-is-a-deal-offers-pelosi-16-trillion/?sh=89d66dc2af5f

            Pelosi should have compromised — back in October. The House passed a bill months ago. It went nowhere and Dems knew that it would go nowhere when they passed it, so what was it worth? Nothing.

            Dems and Republicans are both responsible for what happened (or rather — didn’t happen) before the election. Shame on both parties.

          2. A bill for Covid relief should not be including those things having nothing to do with Covid. That is what the House passed. The Democrats wanted to use people’s lives in their negotiations.

            1. “The Democrats wanted to use people’s lives in their negotiations.”

              Hell, the Republicans aren’t any better.

    2. Yeah, let’s increase our debt! Especially with a super deficit to go with it!

      How about we just get back to work.

      1. There’s plenty of money for our wars…and we throw plenty of it down the drain. Let’s take care of the American people.

        1. Democrats have been saying that since LBJ and yet only Democrat politicians get richer while Americans get shafted

      2. It called a ‘stimulus’ check because it boosts our economy. Trump gets it.

        We want to help people, now, so they are able to get back to work, soon, and without having been decimated.

        It helps to reduce stress and boost overall health, too — something you seem to care about… Let’s help people to be healthy!

      3. Congress passed a $740,000,000,000 defense bill less than 2 weeks ago. That’s where you should focus your debt and deficit concerns.

        1. Fact Check: America’s expenditures are categorized as either mandatory/direct (entitlements) or discretionary.

          if you are concerned about expenditures and the US debt, give up your Social Security, Medicare and Medicaid. But youre not concerned about the debt but rather talking points for Democrats. No surprise there

          Mandatory—or direct—spending includes spending for entitlement programs and certain other payments to people, businesses, and state and local governments. Mandatory spending is generally governed by statutory criteria; it is not normally set by annual appropriation acts.

          Outlays for the nation’s three largest entitlement programs (Social Security, Medicare, and Medicaid) and for many smaller programs (unemployment compensation, retirement programs for federal employees, student loans, and deposit insurance, for example) are mandatory spending.

          Social Security and some other mandatory spending programs are in effect indefinitely, but some (for example, some agriculture programs) expire at the end of a given period.

          Roughly 60 percent of federal spending in 2012 (other than for the government’s net interest costs) was mandatory.

          cbo.org

          1. Because Social Security and Medicare have their own dedicated taxes, their expenditures are not supposed to be included in the general fund expenditures. Furthermore, Social Security is prohibited by statute from paying any benefits that exceed the balance of the Trust Fund plus current revenue. That’s why people have been warning about possibly being unable to pay the projected benefits twenty or thirty years from now. Please stop spreading lies.

        2. Because America does not need to defend itself against China, Russia, etc. Go crawl back under your rock.

      4. Prairie you are right. While we are at it, stop the mandatory expenditures

        https://www.cbo.gov/publication/56886

        The federal budget deficit totaled $430 billion in October and November 2020, the first two months of fiscal year 2021, the Congressional Budget Office estimates. That amount is $87 billion more than the deficit recorded during the same period last year. Outlays were higher by 9 percent, and revenues were lower by 3 percent, than in October and November 2019.

        Total Outlays: Up by 9 Percent in the First Two Months of Fiscal Year 2021

        Outlays for the first two months of fiscal year 2021 were $887 billion, $73 billion higher than they were during the same period last year, CBO estimates. But spending in November 2019 was boosted by the shift of certain payments from December to November. If not for those timing shifts, outlays so far this fiscal year would have been $123 billion (or 16 percent) greater than those in the same period last year. The discussion below reflects adjustments to exclude the effects of those timing shifts.

        Almost 40 percent of the increase was in outlays for unemployment compensation, which rose from $4 billion during the first two months of fiscal year 2020 to $52 billion during the same period this year. That rise is attributable both to increased regular unemployment compensation and to enhanced benefits authorized by the CARES Act.

        Outlays for the largest mandatory spending programs increased by 7 percent:

        Social Security benefits rose by $8 billion (or 4 percent), because of increases both in the number of beneficiaries and in the average benefit payment.

        Medicare outlays grew by $6 billion (or 5 percent) because of an increase in the number of beneficiaries and growth in the amount and cost of services for those beneficiaries.

        Medicaid outlays increased by $11 billion (or 16 percent), largely because of the legislative response to the pandemic. In particular, federal Medicaid matching rates were raised by 6.2 percentage points and states were required to maintain coverage for all Medicaid recipients enrolled during the emergency period, regardless of changes in circumstances that might otherwise cause some beneficiaries to lose eligibility.

      5. https://twitter.com/DataProgress/status/1340398470981677057

        “Data for Progress
        @DataProgress

        NEW POLL: Voters *overwhelmingly* support another round of $1,200 coronavirus relief checks:

        88% Support | 9% Oppose | 2% Don’t Know

        85% of voters also want Congress to pass a coronavirus relief bill before the end of the year.”

        And:

        “Bernie Sanders
        @BernieSanders

        Never forget. The same “centrists” who tell us we cannot afford to give the working class and seniors a direct payment to pay the rent and feed their families during a pandemic, all voted to give the bloated Pentagon a record $740 billion without “paying for it.” Unacceptable!

        5:42 PM · Dec 19, 2020·Twitter for iPhone”

        1. Go back to work to support yourself, your family, your community or sit on your duff and get “free money” from the Gubernmint?

          Hmmmm, decisions, decisions….

          1. Most people want to work and most people aren’t sitting on their duffs, as you say. They aren’t looking for “free money from the Gubernmint.” They are looking for for a hand up during extremely difficult times. And many of those who are getting a check pay taxes.

      6. We welcome more small stipends to help us buy beans, bullets, and 90% silver to use during the collapse

        Saloth Sar

    3. https://taibbi.substack.com/p/amazing-hypocrisy-democrats-make

      “Amazing” Hypocrisy: Democrats Make Wreck of Covid-19 Relief Negotiations

      Democrats stonewalled all year on a new pandemic relief package. Now they’re proposing a new plan that undercuts even Republican proposals, and screws everyone but – get this – defense contractors

      A senior Democratic congressional aide is irate tonight.
      “The Democrats,” the aide seethed, “have just done the worst negotiating in modern history.”

      At issue: a pair of new Covid-19 relief bills, just submitted by a bipartisan group of Senators. Republican Senator Susan Collins gushed that a“Christmas Miracle” allowed the two parties came together on the twin bills, which the press describes as totaling $748 billion and $160 billion, respectively. “Bipartisanship and compromise is [sic] alive and well in Washington,” clucked West Virginia Democrat Joe Manchin.

      It sure is. With the election over, the Democratic leadership in the space of a few weeks somehow negotiated against themselves, working with Republicans to push the total amount of a Covid-19 relief deal further and further downward, to the point where previous plans offered by the likes of Mitch McConnell and Steve Mnuchin now look like LBJ’s Great Society.

      Democrats ultimately settled for less than a third of what they had set as a baseline for state and local aid, accepted a package without any $1,200 direct payments, and signed off on a plan that, after offsets, includes less than $350 billion in new money, well below a slew of pre-election proposals rejected by Democrats like Nancy Pelosi and Chuck Schumer as being too low.

      “They totally caved,” the aide says.

      Back in May, the Democrat-led House passed the HEROES Act, a $3.4 trillion relief package that was pitched as the bill Democrats really wanted. It contained $413 billion new dollars for $1,200 direct payments to citizens, as well as $437 billion in additional unemployment benefits, and a whopping $1.13 trillion for state and local governments.

      Trump said the bill was “dead on arrival,” McConnell blasted it as a “$3 trillion left-wing wish list,” and the anti-spending group Taxpayers for Common Sense seethed that Democrats unrealistically put “everything they could think of” in the bill. Still, Democrats insisted this was the right amount, at the right time, a moral necessity.

      “The House has passed a major bill dealing with COVID,” Schumer said in May, blasting his Senate Republican colleagues for a “pause” in negotiations. “We have done nothing.”

      Republicans, via McConnell, countered in July with the unfortunately named HEALS Act, reported as a roughly $1 trillion aid deal. The bill included another round of $1,200 relief checks. Pelosi in August ripped the plan as “meager measures,” and said Republicans were refusing to take action to feed hungry children

      When Republicans ended up backing a so-called “Skinny” $650 billion deal, it was reported as a signal that the GOP opposition was determined not to budge above what the Trump administration was willing to offer, at the time rumored to be somewhere between $1-$1.5 trillion.

      In September, as time wound down toward Election Day, the bipartisan “Problem Solvers” group released a $1.5 trillion aid plan which they pitched as a version of that theoretical compromise between Democratic and Republican positions. Though the group contained some Democrats, it was dismissed by Party leadership.

      A group of Democratic Committee chairs, including Maxine Waters, Carolyn Maloney, and Frank Pallone, released an “unusual” statement denouncing the “Problem Solvers” plan, saying it “falls short of what is needed to save lives and boost the economy.”

      Democrats countered soon after by passing an updated version of the HEROES Act that offered $2.2 trillion in relief. The Republicans, this time led by Steve Mnuchin and an increasingly desperate-seeming Donald Trump, came back on October 9th with a $1.8 trillion proposal. Reeling as he stumbled toward Election Day thanks to a series of missteps and scandals, Trump seemed anxious to go beyond his previous numbers, if it meant he’d get to sign more checks before Election Day:

      Covid Relief Negotiations are moving along. Go Big!
      This time, even some prominent Democrats were insisting the time was right to strike. “We’re in a place where we should be able to do a deal,” said California’s Ro Khanna. “We have a moral obligation to do something.”

      The Democratic leadership disagreed. It was reported that Pelosi was now insisting on at least $436 billion in state and local aid, and the Mnuchin plan of $300 billion for states and localities just wouldn’t cut it. In a “Dear Colleagues” letter on October 10th, Pelosi described Trump as more interested in taking credit than passing an aid plan:

      When the President talks about wanting a bigger reliefiii package, his proposal appears to mean that he wants more money at his discretion to grant or withhold, rather than agreeing on language prescribing how we honor our workers, crush the virus and put money in the pockets of workers.

      Ultimately, of course, no deal got done before the election. After the election, the Democrats put two of their most conservative members — Manchin and Virginia’s Mark Warner — in charge of negotiating the Covid-19 relief bill.

      Manchin is the guy who just responded to reports that Trump wanted to give out “more money” in direct payments by saying he thought it was a “bad idea” to give out stimulus checks and not supplemental unemployment relief.

      Manchin and Warner repped the Democrats in the bipartisan group that included Republicans Collins from Maine, Lisa Murkowski from Alaska, and Bill Cassidy from Louisiana. Their new deal unveiled today makes little sense, in the context of all of those prior negotiations.

      Remember all of that state and local funding that Democrats insisted was so crucial to the aid package?

      Today, the state and local aid package signed off on by Manchin and Warner is down to $160 billion, appropriated as part of a separate bill that may or may not pass at all, with the main $748 billion plan. In other words, Democrats just agreed to take seven times less than the $1.13 trillion they asked for in the HEROES Act, and about half of Mnuchin’s $300 billion offer in October that Pelosi rejected as “sadly inadequate.”

      As for that $748 billion bill? According to the senior Democratic aide, who pointed to comments made by Mitt Romney, it includes $560 billion in offsets, “repurposed from March’s CARES Act.”

      In other words, the aide says, “The $748 billion deal is really just $188 billion in new money.” Given all the high-flown rhetoric the Party devoted before Election Day to rejecting aid packages they deemed heartlessly small, the hypocrisy, he says, is “amazing.”

  3. The bottom line: a criminal president would self-pardon. Crimes not yet uncovered. But no pardons for NY State tax frauds and I must say the NY AG has some plans.

  4. The President has the power to grant pardons and no entity in America has any power to abrogate or modify that presidential power.
    ________________________________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…[will] do…what their powers do not authorize, [and] what they forbid.”
    ____________________________________________________________

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  5. PARTY ANNOUNCES BAN ON CHRISTMAS HAMS; CONSUMER AMNESTY ENDS THURSDAY
    -Amnesty available to consumers who deliver spiral-sliced ham to local Party Official

    WASHINGTON, DC – The Party today announced an emergency ban on Christmas hams weighing more than three pounds. The common-sense new measure builds on the success of the Party’s Thanksgiving Turkey ban, which virtually eradicated the spread of COVID-19 over the Thanksgiving holiday.

    “Christmas hams encourage gatherings of family and friends. These groups are known to congregate in private homes to engage in conversation, laughter, and religious observances such as celebrating the birth of Jesus. Activities like these pose a grave threat to our collective safety,” said Party spokesperson Gretchen Whitmer.

    “We encourage Americans of all genders to celebrate Christmas alone in a dark room streaming the Lions game on their iPhones,” Whitmer added.

    The Party also announced a limited amnesty for consumers who have already purchased a ham weighing more than the proscribed limit. To take advantage of the amnesty, consumers must deliver their spiral-sliced ham to a local Party official no later than Thursday, December 24. Consumers who also provide a reheatable side dish and a dessert will be eligible to receive points under the Party’s forthcoming social credit program. The credits may be used to earn privileges such as interstate travel.

    Recognizing the Party’s commitment to core first amendment values, the new rules include an exemption for hams consumed at multicultural spiritual gatherings such as HumanLight, National Apology Day, and Jamhuri. The exemption also applies to Party-sanctioned protests, provided that the Party-aligned media certify the protests as mostly peaceful.

    Immediate implementation of these guidelines is authorized under previously approved directives adopted in response to the COVID-19 emergency. Further information on these guidelines will be communicated as circumstances dictate.

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