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.