If
Trump pardons himself, Biden should un-pardon him
Opinion by Ken Gormley
Dec. 18, 2020 at 7:00 a.m. CST
Ken Gormley is an
expert on the Constitution, the presidency and the pardon power. He is
president of Duquesne University.
If President Trump
makes the ill-advised decision to try to pardon himself before he leaves the
White House in January, incoming president Joe Biden should respond with
another unprecedented step: He should “un-pardon” his predecessor.
That might sound
strange, even extra-constitutional. Certainly, there’s nothing in the words of
the Constitution or in historical precedent that speaks of undoing a self-pardon
— but that’s because there’s nothing that authorizes a self-pardon in the first
place. The Constitution’s text, its original meaning and historical precedent
all point strongly against the validity of a self-pardon.
In part because it’s
unlikely that the legitimacy of such an audacious act would be determined in
court, it’s important for the new president, with the advice of his Justice
Department, to take a stand against this dangerous precedent.
The Framers of the
Constitution gave the chief executive enormous discretion in wielding pardons.
Presidents have used this sprawling power to pardon political allies (George
H.W. Bush pardoned former defense secretary Caspar Weinberger), and
even family members (President Bill Clinton pardoned his
half-brother, Roger Clinton). The pardon power permits the president to pardon
individuals of all past federal crimes, and even crimes that have not been
specified. If Trump chooses to pardon his children or any other person within
his orbit, he can do it.
But no president has
ever tried to issue a self-pardon, for good reason. Taking a pardon for oneself
constitutes an act of self-dealing, running counter to the clear text that says
presidents can “grant” pardons, which implies a grant to others. It also runs
counter to the landmark holding of United States v. Nixon, the
Watergate tapes case, in which Chief Justice Warren Burger wrote for a
unanimous court that not even the president is above the law.
In 1974, President
Richard M. Nixon’s own Justice Department’s Office of Legal Counsel issued an
opinion stating that Nixon could not pardon himself, based upon “the
fundamental rule that no one may be a judge in his own case.” Likely for that
reason, Nixon never pardoned himself.
If Trump were to try
to take that step, presumably under the theory that Democrats will retaliate
against him, Biden should first refer the question to the Office of Legal
Counsel. If the OLC in 2021 concurs with the precedent of that office in 1974 —
which is highly likely — this legal opinion would constitute a second piece of
guidance shoring up the position that self-pardons are inherently
unconstitutional. It would provide a basis for President Biden to then issue an
executive order nullifying Trump’s action.
That action is
especially important because Biden seems to be disinclined to have his Justice
Department prosecute Trump in the interest of moving on. This means there may
never be any “case or controversy” involving the self-pardon issue; the question
would arise only if federal criminal charges were filed against the former
president. Thus, it’s quite possible the matter will end there and never get to
court. If it did, the Justice Department’s consistent interpretation of limited
presidential power would be influential — another reason for the new
administration to weigh in.
As Trump considers
his options, he might want to keep in mind that a self-pardon would not be in
his own best interests. The Supreme Court’s 1915 ruling in Burdick v. United
States, declared that a presidential pardon carries with it “an imputation
of guilt,” and that acceptance of a pardon constitutes a “confession.”
When I interviewed
President Gerald Ford in 1999 for a program at Duquesne University on his
pardon of Nixon, Ford stressed that the Burdick case was a
crucial factor in his decision. He felt it would give the American public what
it wanted most: a legal admission of wrongdoing from Nixon. Ford told me that
he sent a young lawyer, Benton L. Becker, to Nixon’s compound in San Clemente,
Calif., to explain the import of the Burdick case.
Nixon’s personal
lawyer, Herbert “Jack” Miller, later confirmed this account and told me that
Nixon initially sought to refuse to accept the pardon because he did not want
to admit guilt. It was only after Ford’s lawyer threatened to walk away and
withdraw the pardon that Nixon capitulated and accepted it knowing its legal
consequences.
Because the acceptance
of a pardon amounts to a legal admission of guilt, Trump would suffer a
self-inflicted wound if he pardons himself and is considering running for
president again in 2024. One would hope that a major political party would be
loath to nominate a candidate who had effectively confessed to a federal crime.
And Trump’s legacy
would be forever tarnished. Addressing the Constitutional Convention in 1787,
James Iredel of North Carolina, later one of the first Supreme Court justices,
sought to assuage fears about the reckless use of the pardon power. The
greatest deterrent to a president abusing the power, he said, would be the
“damnation of his fame to all future ages.”
If Trump is foolish
enough to take that risk, his successor should not allow it to stand, for the
benefit of the American presidency and future ages.
