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.

 

 

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

  1. If a President can pardon themselves for any law they wish to break, then there would be no laws for a President. And for the originalism argument, where does it say a president CAN pardon themselves. And for a President to pardon themselves for crime, then there must have been a crime committed.

    1. He has pardon power for Americans and he’s under that definition. If it’s not prohibited then it’s up to idiots like you to prove he LACKS that power which he does not.

  2. Biden can’t “unpardon” Trump.
    Jeso.
    Went in dumb, come out dumb too. Hustling round DC in alligator shoes. Law professor chumps.

  3. Turley: “This includes the reliance on interpretations long rejected by the Supreme Court.”

    ***
    True, but that may not stop them. The Supreme Court’s prestige has been rapidly flaking off like dandruff lately. Even federal district courts decline to follow its precedents and at least one federal judge criticized the Court publicly. Notoriously, Sullivan was looking for a way around the Flynn pardon.

    Law doesn’t matter to these people.

    Now the Democrats want to stuff the Court the way they stuff ballot boxes till they get the results they want. The new ‘D’ is an ‘F’.

    1. Society needs its referees. The occupational guilds who once aspired to supply them are now in the business of supplying benefits to those parties advancing their class interest. It is at this point that the legitimacy of the referees evaporates, and they only work their will via brute force if they can do so at all. What’s a federal judge without the Marshal Service? A pompus ba*tard in a black robe.

  4. To clarify, please keep in mind that Gormley in his article was exploring how a Biden administration could possibly challenge what Gormley and many others believe would be an unconstitutional self-pardon by Trump short of an indictment that would bring the issue to the courts. First, Gormley was recommending a referral of the Trump self-pardon to the Office of Legal Counsel and if they agreed then he was recommending an EO to undo the unconstitutional self-pardon, not any other constitutional pardon by Trump. While JT was against the EO, he did not address the OLC referral or any other possible options.

  5. Trump ;can’t but Pence can. The whole conversation is supremely stupid. The real problem is if the the socialist communists can take over as they are doing on inauguration day there IS NO MORE Constitutional Republic. That is the last chance the military has to uphold their oath of office. The ultimate reason given in their oath of office. Chances of that. fifty fifty at best .I would dearly love to see the tribunals and sentences at that point. But… I wouldn’t bet money on it. I don’t think our present day military has what it takes to uphold their oath of office.

  6. Something the public better learn and learn fast. That Professor is correct. The Communist Socialists can do anything they want whenever they want. Come inauguration there is NO MORE Constitutional Republic.

    1. @MikeArre – Frightening but True. As more each day is being revealed on the coup attempt and no one held responsible, Americans better take notice fast.

  7. Thank you Professor Turley! You are a clear voice of reason in this age of anything goes if it helps the cause!

  8. Goose Meet Gander

    So, then, Trump can unpardon/uncommute Marc Rich, Chelsea Manning, the terrorist Oscar López Rivera — and the next president can unpardon the entire Biden family?

    Why not go full monty: “When my guy’s the president, he can “unacquit” a defendant.”

    1. “The lunatics have taken over the asylum.”

      – Anonymous
      ___________

      The parasites (welfare recipients, entitlement beneficiaries, public workers, governmental contractors, etc.) have taken over the treasury. Actually, it’s Tytler’s dictatorship. Ben Franklin’s American restricted-

      vote “republic” has finally been transformed into unbridled democrazy and has come to its end – America has come to Tytler’s dictatorship – the communist “dictatorship of the proletariat.”
      __________________________________________________________________________________________________________________________________________________

      “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority

      always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.”

      – Alexander Tytler

  9. It’s this kind of insane talk among supposedly responsible people–like garbage-head Gormley–that creates AN EXCUSE FOR MARTIAL LAW.

    “Except in Cases of Impeachment.” Why did the founders include this condition? For several reasons, one of which is that they wanted to make clear they were including the President in who could be pardoned and for what. He can pardon himself.

    And nowhere does it say he can be unpardoned. Full stop.

    Why would the founders want the President to have the power to pardon himself? Because Presidents might become reluctant to give up their powers if they believed they would be hounded into prison by vindictive, political enemies. This is why we have–until recently–been reluctant to talk about prosecuting former Presidents. Such threats might force Presidents to pardon themselves, or… SUCH THREATS MIGHT PROVOKE PRESIDENTS TO MARTIAL LAW.

    For that matter, the threatening talk against Barack Obama is also a bad idea, so it’s not just Democrats doing it, but the Democrats definitely seem more serious about it.

    Have my fellow Americans lost their minds????? Why are we creating a pretext for tyranny???

    1. Have my fellow Americans lost their minds????? Why are we creating a pretext for tyranny???

      Yes and yes

      Today is the 4th Sunday of Advent leading to Christmas. What percentage of Americans (and commenters on here) went to Mass or church service? opened their Bible (if they own one) and reflected on the timeless truths therein? These truths were embraced from George Washington to Abraham Lincoln and permeated their public speeches. Today? not by a long shot.

      Natural law has been used since the Greek Stoics to address questions like “what is right, what is true, what is permissible, what should I do”. They revolve around observing nature and reflecting on that which is natural vs unnatural.

      Few today are familiar with any of these truths which answers your questions. Americans have jettisoned these principles that were foundational in developing and guiding our country, (e.g. American Civil War of 1860) and all generations before us. We were not perfect but perfection is a red herring. Perfection does not exist anywhere. We certainly enjoyed a consensus since the founding of Jamestown and Yorktown but we have not had since the 1950s.

      Unless we return to these principles, anarchy will continue until we have become a totalitarian state like China. We are almost already there

      With the Founding Fathers, Fr John Courtney Murray SJ, held that there exists an ensemble of substantive truths that “command the structure and the courses of the political-economic system of the United States” (We Hold These Truths, p. 106), truths that can be known by reason—not indeed self-evident but reached by “careful inquiries” of “the wise and honest” (p.118). Reduced to its skeleton, the consensus affirmed a free people under a limited government, guided by law and ultimately resting on the sovereignty of God.

      He rejected not only the old Liberal individualism, not only the Marxist concept of human rights based solely on economic productivity, but also “the new rationalism,” because it is unreasonable and is destructive of sound political philosophy. In contrast to those options, “the doctrine of natural law offers a more profound metaphysic, a more integral humanism, a fuller rationality, a more complete philosophy of man in his nature and history.” Over and above all that, “it furnishes the basis for a firmer faith and a more tranquil, because more reasoned, hope in the future” (p. 335).

      From the Preface of “We Hold These Truths” by John Courtney Murray, SJ, 1960.

      https://www.library.georgetown.edu/woodstock/Murray/whtt_index

      1. By the way, Governor Nuisance has already installed martial law in California. Just ask any small-business owner there. The Democrats are always looking for excuses.

        1. Diogenes, thank you very much for that bit of refreshing coherence, lucidity and revelation.

          Please inform these psycho-babbling deniers, as impossible as that task will be, that

          MARTIAL LAW

          has, absolutely and/or effectively, already been imposed.

          1. Comrade Governor Tyranny and Despotism,

            “Goofy Gavin Nuisance.”
            ____________________

            It’s time for this —- to end!

      2. America is in a condition of hysteria, incoherence, chaos, anarchy, corruption and rebellion.

        President Abraham Lincoln declared marital law, seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

        President Donald Trump must now declare martial law, seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

        1. Lockdowns. Who ever heard of lockdowns before, based on a virus? I don’t think anyone ever did. Where did the idea come from? China. They locked down internal areas of China and prevented air traffic from traveling from the infected areas within China to other areas while they continued permitting their citizens to travel to the US and the world.

          The idea of lockdowns comes from the CCP who believes in one party rule and will destroy anyone that gets in its way. Lockdowns, is that new to China? No. They have concentration camps where over 1 million Uighurs are locked away. They have a Great Wall thought to keep people out but also thought to keep people in.

          Since when does the US follow the CCP lead and use lockdowns that in some places are downright ridiculous and totalitarian. All the lockdown’s are questionable and for the most part likely unconstitutional but some have a weak justification. Are our leaders adopting the habits of the CCP?

          Are we moving in the direction of a totalitarian state? Trump didn’t do that. He stayed within the law and within the Constitution. Other Presidents moved beyond the Constitution. The Washington post talks about martial law, not President Trump. Some of our leaders believe that force is justified to obtain their ends. Our nation is not secure. We are going down the wrong path.

  10. This comes directly from Sullivan’s actions against Flynn. When there are no consequences for an action, that action will not only be repeated, it will be expanded. You, Professor, have been a vocal critic of the idea of Trump pardoning himself. But the left has made it clear that they intend to prosecute him, no matter how flimsy the grounds. Floating an idea as absurd as an “unpardon” just shows to what lengths they will go to get Trump. They cannot afford to give Trump the chance to run again in 2024 or ever. Therefore they intend to destroy him through the judiciary which they own. Do you still think a Trump self-pardon is such a crazy idea? He should pardon himself, his family, and his staff. Otherwise, persecuting Trump will be the obvious sideshow in the Biden circus. The left is terrified of the moment Biden has to emerge from the basement, like Puxatawney Phil, and see his own shadow of corruption and senility and election fraud. Crucifying Trump and his supporters will be a welcome distraction for your side. God help us.

  11. The CDC wants to use the vaccine on black people before testing it on the rest of us.

    Policy genius.

    But the NY Post reported that the president of Brazil said the vaccine will turn you into a crocodile.

    The black community already believes that AIDS was created to target them but now they trust the government completely of course. The rumor in that community isn’t that the vaccine will turn you into a lizard; they suspect it will sterilize you, so naturally the Center for Tuskegee Experiments wants to vaccinate black people first for their own good.

    If anything, the prison population should be vaccinated first so leftist judges won’t have the China Virus excuse for releasing criminals into the streets anymore.

    1. That the CDC produced this inane recommendation is another item for dossier of evidence which says that the systemic incompetence of public health authorities is approaching school administrator levels.

      It’s not that difficult to contrive a crude but implementable set of priorities.

      1. Medical sector workers who have client contact in excess of what an ordinary service desk employee might (delineated by detailed occupation). Just shy of 9 million in number, of whom about 5 million are drawn from the four grades of nursing.

      2. People over sixty: line up oldest to youngest.

      3. People fifty to sixty line up highest BMI to lowest.

      Of course they don’t do this because Black Lives Matter. Or somthing-or-other.

      1. Pretty soon going up the down staircase will give you Covid.

        They have lost most of their credibility and at least some of their sanity.

    2. Tge vaccines-Pfiezer and Moderna-have been tested on people of all races. Some of the phase 3 trials had an underrepresentation of minority races.

      1. Are you “underrepresented” if you don’t want to do it? I am underrepresented too.

        I will wait for the results of the Pygmy cohort. If they turn into lizards who cares?

  12. To adopt such a view would requiring unlearning both the constitutional language and history underlying… our rule of law.

    It’s quite apparent that Gormley and his ilk view the language of our constitution merely as a verbal Tinker Toy to reconfigure. And the fact these legal “experts” are in a position to influence the next generation of lawyers does not encourage confidence in the future of our constitutional republic.

    1. Leftists hate the Constitution because it’s an incredible impediment to their rabid lust for control. They’re forever breaking their teeth on it.
      So Working as Designed – well done Framers!

    2. It doesn’t matter is trump parsons himself. NYS AG Letitia James and Manhattan DA Cyrus Vance have active investigations that are delving into the trump family’s action that occurred before trump became president. Trump will spend all that money that he and kuschner siphoned off contributions to the presidential campaign to pay for the family’s legal defense.

      1. 😏 of course they do. Mueller ran an active (fishing) investigation too. As long as we have law schools pumping out lawfare practitioners, government agencies hiring them and corrupt politicians funding them, we’re assured to have more abuse of power masquerading as a system of justice.

  13. The anti-Trumpers have already proven that they have no problem b a s t a r d i z i n g everything including the Constitution to get President Trump and anyone they think has supported him, why should this be any different. Present their b a s t a r d i z e d propaganda to the anti-Trump court of public opinion and they’ll eat it up as fact.

  14. “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

  15. If a President can pardon himself, then that effectively puts the President about the law. I can’t imagine that that was the Founders’ intent. But the appropriate action if Trump attempts to pardon himself is for someone with standing (presumably the A.G., if the DOJ wishes to charge Trump with a crime after he leaves office) to challenge the self-pardon in court.

      1. Young,
        😁 CTHD and her ilk imagine quite a bit when considering ways to weaponize the law against political opponents.

      2. Leftists like to fret about everything. What they do is selective fretting pushing only the ‘fret’s’ that can produce one party rule. They desire to mimic the CCP.

    1. Your vast and vivid imagination does not bear.

      Enough of your hysteria and incoherence.

      Now you grasp why the American Founders never intended for women or men without a will of their own* to vote.

      The president has the power to pardon, and the president and the president alone will make that decision.

      You really, really need to move to China where you can fully appreciate and enjoy the principles of the Communist Manifesto.

      Here you are a traitor and a mortal enemy worthy of disposition.
      __________________________________________________

      *

      “The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”

      “If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”

      – Alexander Hamilton, The Farmer Refuted, 1775

    2. When you’re dumb you’re really dumb. Pardon effectively puts everyone “above” the law to whom it is granted. That’s the point of the word. To pardon is to nullify the law. If the POTUS can not pardon himself he can’t pardon anyone, but he can and does pardon others so he can pardon himself. What about that don’t you understand?

  16. Is the left trying to remove all doubt about their stupidity?

    Mr. Gormley is either an agitator, trying for click bait, or a retard.

    Way to impress prospective students tor Duquesne University.

  17. Allowing a president to pardon himself makes a mockery of our claim to be a country of laws and confirms the wrongly held belief that if a president does it it’s legal! It turns the president into a king unfettered by any limits. I cannot believe that you support such a concept but I’m not surprised.

      1. Where does the constitution say he can pardon himself? Where does the constitution say a President can pardon someone who might commit a crime in the future?

    1. By rejecting, ignoring and modifying the “manifest tenor” of the Constitution, you become one of those who are “…adhering to their enemies, giving them aid and comfort.”

      By your acts of treason, you become an enemy of the Constitution and a mortal enemy of the United States.
      _____________________________________________________________________________________

      Article 2, Section 2

      The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

      Article 3, Section 3

      Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

      The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

    2. The mockery part is solely in the eyes of the beholder; it can never be objective fact. As I posted above, the definition of pardon is to effectively nullify the law. It’s a country of laws except for this one exception of pardon that over rides or cancels the law in that narrow sense.

      If the authors of the document wanted to prohibit POTUS self-pardon they could have written that but they did not.

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