Pardons

Former Judge Michael Luttig on Why the Pardon Power Does Not Encompass Self-Pardons

A pardon is something granted, like a gift, and it is presumed one cannot grant something to themselves.

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A week or so back, I posted on the pardon power, and explained why I do not believe that the President's power "to grant reprieves and pardons for offenses against the United States" does not allow for a self pardon. In a recent op-ed, former federal judge J. Michael Luttig makes a compact and powerful case for this position.

As Judge Luttig notes, some arguments for or against the lawfulness of self pardons are unpersuasive. The 1974 Justice Department memo is unduly conclusory and rests solely on the idea that no one may be a judge in their own case. Likewise, arguments that a self pardon would violate the president's oath to "take care" that the laws are faithfully executed assumes away the question. What, then, are the key arguments? Judge Luttig writes:

So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous 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.

Second, 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. There, without so much as a hint of a president's power to avoid criminal liability through self-pardon, they provided that even "in Cases of Impeachment," for which the president can only be removed and disqualified from holding high federal office, "the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

And last, but not least, 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.

To my mind, the first two of these arguments do all the necessary work, and the third is largely a principled gloss on the point.

An additional argument is that the nature of the power—the power to grant a pardon—provides the power for the President to confer a pardon, much like a gift. Not only does this not make sense if applied to oneself, it also contradicts the longstanding norm that grants to oneself are presumptively unlawful unless expressly authorized–and there's no such authorization here. So, as explained by Professor Eric Muller, the question is not whether the President can pardon himself, but whether the President can grant himself a pardon. Framed in that fashion, it is easier to see why the pardon power does not include self pardons.

Of course not all scholars who have looked at this question reach this same conclusion. Professor John Yoo, for instance, argues here that the pardon power necessarily (if unfortunately) encompasses the power to pardon oneself and one's family. I think Professor Yoo is correct on the latter point. The claims one sees on Twitter and elsewhere that self-interested pardons are invalid or voidable are largely TDS fan fiction, not serious arguments. But I disagree with him on self pardons, and do not think that the founding era materials he cites answer the question. The founders clearly contemplated that pardons could be used for self-interested purposes, but nothing in the relevant materials speaks to the question of a self-pardon, or addresses the point that the very nature of the power is to grant pardons, not simply to pardon.

Given the debate on the validity of self pardons–and the Justice Department's longstanding (if underdeveloped) position that they are invalid–were the President to attempt to pardon himself before he leaves office, he would be taking a big risk. (I wrote more about this here.) On the other hand, were he to resign a few hours early, nothing would get in the way of a President Pence pardoning him.

All the above is only relevant if the President attempts to pardon himself and faces an actual federal investigation or prosecution. Will that happen? I do not know (and nor does anyone else). I am generally against the idea of attempting to prosecute a former President for actions they took as President, as I am against the criminalization of political differences. On the other hand, were there solid evidence of, say, tax fraud, it would be fully appropriate for the federal government to treat a former President much the same as anyone else for which there was credible evidence of such conduct. I also think it would be perfectly appropriate for federal investigators to stay their hands until we see what, if anything, comes of the various New York investigations. Pardons do not reach state crimes, and a state-level investigation or prosecution would not carry the same dangerous political overtones.

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  1. The text of the pardon power does not exclude state crimes. At the time of the founding and for several generations thereafter, the term “United States” was understood to be plural, not a singular conception.

    1. “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

      No, it would say “several states” (like it does with militias) if that was what they meant.

      1. No, if they had intended to limit the ambit of the power to just federal crimes, they would have so expressed.

    2. Offenses against the United States is a term of art, and means federal crimes.

      1. And even if it weren’t and offense against a single state wouldn’t be an offense against the united states.

        1. You are construing the term “United States” to be singular. At the time of the founding, it did not have that meaning.

          1. When you are losing an argument to Dr. Ed, and you are, it’s time to rethink your life choices.

          2. No, he isn’t construing it as singular. He’s construing “united states” as plural, and the pardon power extends only to offenses against them in the plural. Not offenses against only one state. If it meant what you claim it would have to say “offenses against the united states or any of them“. Only federal offenses are offenses against the united states.

      2. A later construction that characterizes the words “offences against the United States” as a term of art cannot memory-hole the everyday meaning understood at the time of the founding.

        1. 1. That’s not true. That’s a hard form of originalism that courts have not adopted.

          2. It’s also bad history, offenses against the United States meant federal offenses from the founding forward. It was a term of art.

          3. The “singular-plural” thing is a lot more complex than you say anyway. Plenty of people used both the singular and the plural from the time of the founding.

          1. That’s not true. That’s a hard form of originalism that courts have not adopted.

            Really ? Leaving aside the specific case mentioned above, we are postulating that :

            1. the Constitution uses the phrase “toast and marmalade”
            2. at the founding the phrase “toast and marmalade” was understood to mean “toasted bread” plus “a type of fruit based preserve”
            3. since then “toast and marmalade” has become a term of art in the legal world meaning a package of employment benefits that includes both base pay and a bonus based on business profits
            4. the courts, and most particularly including the originalists on the courts, when construing the phrase “toast and marmalade” in the Constitution, apply the new post founding term of art in preference to the toasted bread plus preserve original meaning.

            IANAL but this seems unlikely to me.

  2. If I own a piece of real estate and I deed to myself and my wife [very common], I am still a “grantor” on the deed. Same if I deed to an LLC of which I am the sole owner, also common.

    The President would making a grant to the individual named Donald Trump.

    It is a tRump hater fantasy that he is going to do this in the first place but this “grant” argument is nonsense.

    1. You left out grantor trusts, which was the first thing that came to my mind, but I take your point. I don’t think the “grant” argument is compelling at all.

      I suspect part of the reason this is a difficult question is that the pardon power hearkens back to kings, who didn’t have to worry about self pardons because they were, well, kings.

      1. I don’t think the “grant” argument is compelling at all.

        I don’t either, but I do think Luttig’s third point is compelling, especially when reinforced by the second.

        If the President can be prosecuted then it makes no sense for him to be able to pardon himself.

        1. Why not? Presidents can still (1) be impeached for pardoning themselves and (2) face public opprobrium for doing it.

          Presidents often care what history will think of them. That’s a big check on the power to self-pardon.

          1. “Presidents often care what history will think of them. That’s a big check on the power to self-pardon.”

            Often isn’t always. And the type of President who doesn’t care what history thinks of him, or is so delusional that he thinks he’ll be vindicated no matter what, is the kind of President who would probably self-pardon.

            1. It’s not a big deal. If there truly was a situation where there was a consensus to prosecute a President, you could pass a constitutional amendment overturning the self-pardon or even stripping the power.

              It’s not like there are any shining examples of successful prosecutions of ex-Presidents, even without self pardons.

              1. Oh I’m sure there are ways around it. I just don’t think public opprobrium or historical judgment is that big of a check in this situation. Particularly when it is weighed against the all to common horrors of the American penal system.

              2. But we do have a President who felt compelled to accept a pardon. And I think you overstate the ease and likelihood of specially amending the Constitution to allow a prosecution of a single individual, no matter who that individual was. And have you seen any Republicans saying anything about the fraud filings? If they can’t even say aloud something is wrong when they see it and are asked, you think they are going to support a constitutional amendment?

                It’s not like there are any shining examples of successful prosecutions of ex-Presidents, even without self pardons.

                Park Geun-hye.

                1. I think that it is highly unlikely that any former President will ever be successfully prosecuted, and that is a good thing.

                  If there was a President that did something so bad that there really was a bipartisan consensus, the Constitution would be amended. There is not a bipartisan consensus regarding the current President, and that’s something his opponents have not come to grips with regarding legal proceedings. You can’t ignore almost half the country.

                  1. Dilan,

                    It is highly unlikely that the Constitution would, even in the most dire circumstances, be amended to revoke a prior pardon of a single individual for the purpose of prosecuting them. And doing so would run afoul of ex post facto principles, though a Constitutional amendment allowing it would, by definition, create an exception from the ex post facto laws. But because that is an incredibly bad way to do government, that shouldn’t be our fail-safe for corrupt, self-pardoning Presidents.

                    Imagine Trump did sell national security secrets to Russia or that Biden does (through Hunter!), if you prefer, (both while in office) and they each have purported to pardon themselves for the crimes committed in office. Just tough nuts? That seems contrary to any principle of good government by the people and contrary to the underlying evil the Founders purported to be rebelling against. Odd they would enshrine such kingly immunity in the Constitution.

                    You are wrong.

            2. Just talking hypotheticals here, of course.

          2. Presidents often care what history will think of them. That’s a big check on the power to self-pardon.

            Not as big as the incentive to stay out of jail.

            1. And honestly given how horrible the American prison system is, it’s honestly not the most immoral choice to keep oneself or one’s friends out of it.

          3. Why not? Presidents can still (1) be impeached for pardoning themselves and (2) face public opprobrium for doing it.

            Well, have you read the news lately?

            (1) If there will be a Presidential self-pardon, it’ll be done at the 11th hour, far too late for an impeachment. So, impeachment is no check on abuse of that particular pardon power. A President need never pardon himself before impeachment. He can wait until he is impeached and it becomes clear there will be a vote to convict. He can’t be prosecuted while President and, if it becomes clear he will no longer be President, whether through impeachment or expiration of his term of office, he can pardon himself at that time.

            To repeat: The threat of impeachment provides exactly zero disincentive to abuse the pardon power by pardoning oneself. In fact, if anything, it makes it more likely.

            (2) And, in nearly but not quite equal measure, undying love and devotion of people like Sean Hannity, Rush Limbaugh, Dr. Ed, Brett Bellmore, DavidBehar, Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf, and legions of others proudly part of the MAGA cult. If you think Trump cares more about the views “the Establishment” (i.e., anyone not part of the cult) than the views of his cult members, have you watched the news lately?

            Presidents often care what history will think of them.

            Have you heard of Donald Trump?

            And, regardless, that is hardly a big check on the power to self-pardon. The self-pardon isn’t really all that problematic if there is not anything to be pardoned for. The problem, the big problem, is if the President did commit a crime that requires a pardon to stay out of jail. In that case, the eyes of history don’t look any more kindly, I would think, on a President who was convicted and spent considerable time in jail than on a President who pardoned himself for alleged (or maybe never formally alleged, because pardoned) crimes.

            You might be thinking, well, if he is sitting in jail, maybe the narrative that he was unfairly prosecuted will become the dominant one and, much like Mandela, his stature will grow for having spent time in jail. If Mandela had the power to pardon himself, he wouldn’t have been arrested or charged in the first place. And count me the prominent politicians of the past 100 years in whom you have any confidence they would accept a life sentence and/or 30 years in prison for the possibility that it’ll increase their stature in the end?

            Exactly.

            So, no, it isn’t a “big check.” In fact, the most recent and only President who had the opportunity to face the music rather than accept a pardon is Nixon. He chose the pardon. Granted, he is worse than most men and most Presidents, but, then, most Presidents who would feel the need for to use a pardon would also be worse than most. And Nixon had something of a Mandelan rehabilitation too.

            1. 1. You can impeach after a President leaves office, to disqualify him from future office.

              2. The fact that conservatives LIKE President Trump is actually a reason to allow self-pardons. It is truly dumb and bad for the Republic to prosecute popular politicians.

              1. 1. You can impeach after a President leaves office, to disqualify him from future office.

                Very much in doubt. Maybe an even split in legal community opinion, but no more certain than that. There is even less support for it in Constitutional language than the self-pardon.

                “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, Sec. 4.

                “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, Sec. 3, Clause 7.

                First, a former President, etc. is not a current President, so it seems to be a stretch to say a former President can be impeached when Art. II says “shall be removed from office” which strongly implies the persons to whom it implies are currently in office.

                Second, even if you are right, I would argue that a self-pardon would be ineffective after a post-Presidency impeachment because, again, the language says: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Again, impeachment means “shall…be” subject to indictment, etc.. Your only wiggle room is “according to Law”, but the only law you could cite that the self-pardon prevents indictment, etc., would be the Constitution which specifically provides that the impeachment party shall be subject to indictment.

                I think it’s heads (no self-pardons) Trump can be indicted post-Presidency, tails Trump can be indicted post-Presidency (but only if impeached).

                2. The fact that conservatives LIKE President Trump is actually a reason to allow self-pardons. It is truly dumb and bad for the Republic to prosecute popular politicians.

                No, the fact that Trump supporting Republicans (who are not conservatives by any stretch) like Trump is truly dumb and bad for the Republic. Prosecuting corruption is generally a good idea, unless the corruption is small scale and no one else would be prosecuted for it. (I didn’t know much about South Korea, but they had a problem with corrupt pardons and corruption generally, and the prosecution of their disgraced President is, it would appear, helping things. The public got fed up with corruption and the fact that Presidents were no longer above the law appears to have helped. The important thing is to be sure the case is sound, not how that 30-40% of the populace “likes” the corrupt politician.)

        2. Well, that’s funny, because Luttig’s third point is just the DOJ’s, “No man should be the judge in his own case.” restated, and Luttig himself rejected that one as “unduly conclusory”. It’s remarkable that he didn’t realize he was just rephrasing what he’d rejected already, reasoning from “ought” to “is”.

          1. Luttig’s third point is just the DOJ’s, “No man should be the judge in his own case.” restated,

            No it’s not. Not close. A pardon is not a finding, legal or otherwise. It’s an exemption from the law. There is no case being judged.

            1. Take it up with the DOJ, then. Both they and Luttig are claiming you can’t pardon yourself because it’s improper self-dealing. The DOJ may have described the self-dealing differently, but it was the same concept.

      2. The grant argument is also self-refuting as presented :

        Not only does this not make sense if applied to oneself, it also contradicts the longstanding norm that grants to oneself are presumptively unlawful unless expressly authorized

        It starts off claming that it is inherent in the meaning of the word “grant” that a grant to oneself is logically impossible. And finishes by asserting that the law has norms to counteract such things. If you do not think witches exist, you do not need witchfinders.

        Back in the real world, self grants are not logically impossible. Apart from the examples previously mentioned, we have rulers throught history granting themselves titles, medals, Dukedoms and even godhead.

        Not to mention mundane things like granting themselves other peoples lands or wives. Such self grants may happen in polities with a system of law, where the grant of land or privilege to the King requires some use of a seal or whatever – ie the King is not granting himself something he already possesses, but taking some formal action to change legal rights in his favor.

  3. Unpersuasive lawyer nitpicking. Nitpicking is in bad faith, and should be criminalized as a misuse of the law. Penalties for perjury should apply to Adler and to the judge.

    1. Nah, nitpicking is fine in the legal context. You can write a letter to your congressman asking to strip the power to regulate lawyers from the judiciary and give it someone else, but it won’t go anywhere.

  4. I disagree — the framers were very much aware of the concept of Sovereign Immunity — that the king can do no wrong.

    Impeachment was the solution for if the President did do wrong, but it was the sole limit on his sovereignty, and there are no provisions for retroactive rescission of his sovereign acts.

    Hence while Congress could impeach (and convict) a POTUS for pardoning himself, the pardon would remain valid because of the sovereign authority he had when he issued it.

    And pardons are not “gifts” — not in the traditional sense. Instead they are more along the lines of divine justice — abating injustices and the like. After all, if they were “gifts” then pardons become quid pro quo — exchanged for a different gift, or outright sold.

    1. I was thinking along the same lines that the power to pardon comes from the Kings power to pardon, created because the British Courts worked in the King’s name and in fact were originally delegations of the Kings power.

      The King also enjoyed immunity to prosecution, because of divine right.

      Parliament tried and executed a King in a way an analogy to the Impeachment formalized in our Constitution.

      It therefore seems to me the President may be immune for prosecution for acts while in office, even after he leaves office but may also be subject to Impeachment and Conviction after he leaves office for High Crimes and Misdemeanors committed while in office, although the sole penalty of Impeachment and Conviction in the Constitution seems to me to be removal from office. If any President were convicted of Treason, does Congress have the power to execute him?

      On the other hand I’m sure some will wish to prosecute Trump after he leaves office, largely from TDS, but that seems an extraordinarily bad idea for a lot of reasons.

  5. People grant themselves vacations, deserts, all sorts of things all the time. Extrapolating from that to allow granting oneself a pardon is clearer than this murky expansion of “pardon oneself” to “grant oneself a pardon”.

    As for the actual question of pardoning oneself, I can only see two arguments. For the ability, the Constitution doesn’t say no. Against the ability is the unstated “no man is above the law”, except a pardon in advance of a trial, as Ford gave to Nixon, does make the man above the law, and since Pence could pardon Trump after Trump resigns, as Ford did for Nixon, it’s a distinction without much difference.

    1. “and since Pence could pardon Trump after Trump resigns, as Ford did for Nixon, it’s a distinction without much difference.”

      The law is full of distinctions that may seem small or trifling.

      In this particular example, Trump would have to depend on Pence pardoning Trump. Which may or may not happen, given that once Trump resigns, he would have no ability to make Pence pardon him.

      1. And Pence may need a pardon first for the scheme to work, else Pence will be implicated in Trump’s crime. And exchanging a pardon for a pardon is likely illegal bribery, so it is at least arguable that one of them could never fully escape criminal liability….whoever grants the last pardon (and hence doesn’t get one covering the act of granting a pardon as part of a bribery scheme) commits a new crime that now isn’t pardoned as it post-dates his prior pardon.

        Involving a second person changes the incentive structures dramatically, even if I am wrong that a pardon for pardon scheme could create criminal liability. The only example we have of a former VP pardoning a former President is a former VP whose political career basically ended. Maybe Pence understands that’s basically where he is anyway, but maybe he doesn’t. Even if he does understand he is a most unlikely President, he has less of an incentive to keep Trump out of jail than Trump does. Does he really want to be the guy who was President for half a day for the sole purpose of pardoning a crook? Who here was talking about people caring about history?

        When it’s somebody else’s neck in the noose, I think your own legacy doesn’t take quite the back seat it does when it’s your own neck. Which, in addition to all the reasons Adler, Luttig, Tribe, and every other reasonable person has expressed, is why a person should have to rely on someone else pardoning them. In that case, it’s never a given, so there remains some, substantial disincentive to criminality.

  6. Lets look at a hypothetical example: On the morning of Jan 20, and outgoing president goes to land where there is only federal jurisdiction for a crime spree. They murder, rape, commit tax fraud, do drugs, and pretty much anything they want as long as it does not cross into a state. At 11:59 am they give themselves a pardon. According to some, there would be zero legal consequences for this. I don’t think this is that absurd of a situation, it is not difficult to see Trump (or any president) doing the same thing, just over a longer time period, and the crimes are not as open.

    1. Note to self: Cancel winter vacation in Yellowstone.

      1. Or the District of Columbia.

      2. In theory, you can’t be prosecuted in some parts of Yellowstone because there aren’t enough residents to make up a jury, although a federal judge named William Downes appears to have decided that he could just ignore the 6th amendment.

        1. Yet another reason to steer clear when Trump goes on his meth-fuelled rape and murder spree.

    2. I think this summarises quite well the distinction between liberal and conservative interpretative schemes.

      Under the conservative scheme, if the interpretation – attempted without trying to argue backwards from preferred answer to colorable justification – lands on an answer we don’t like, then the conclusion is that the law is silly and should be changed. Verdict first, sentence later.

      Under the liberal scheme, if the answer appears at first sight to be one we don’t like, that is proof positive that we did it wrong, and we must now argue back from the answer we do like, to some kind of justification – however absurd. Sentence first, verdict later.

      1. If one reading of an ambiguous statute produces would produce bad results, I do think that’s an argument for a different reading. Not because the result would be bad, but because laws are designed to produce good results, so it’s less likely that the bad version is what was actually enacted.

        But I think it tends to be a pretty weak argument, since no law is going to completely remove the possibility of bad outcomes, and there are plenty of laws that don’t even come particularly close. At any rate, I’m not particularly concerned with the scenario MollyGodiva has outlined here, and certainly not to the extent that I think it’s absurd to propose that the Framers would have drafted a constitution that permitted such a thing.

        1. “If one reading of an ambiguous statute produces would produce bad results, I do think that’s an argument for a different reading.”

          The problem with this reasoning is that it gives you a motive to see “ambiguity” any time you think the apparent meaning of a statute would produce bad results.

      2. Generalize much?

  7. I also think it would be perfectly appropriate for federal investigators to stay their hands until we see what, if anything, comes of the various New York investigations.

    Why? We know that any federal investigation and prosecution is going to take years, and reach the Supreme Court one way or another. To wait until the state cases are finished means there is an excellent chance that federal crimes will never be brought to a conclusion at all.

  8. Planning an indictment without a specific crime in mind or a specific wrong that must be punished is contrary to everything about American justice and to western legal justice traditions. It’s what an evil totalitarian might do.

    It says a lot about the people contemplating it.

    1. Yeah. What kind of person would just randomly accuse people of unspecified crimes. I hope a person like that never becomes President….

      https://www.newsweek.com/trump-has-accused-numerous-political-rivals-crimes-including-joe-biden-barack-obama-1537922

      1. Accusations are words. They are not actions, nor are they an indictment. You people keep pretending not to know the difference. It is very shallow and dishonest. When you get an opportunity to decide to actually commit evil actions and hurt people, you will do it eagerly and justify it because … words.

        Biden and Obama and whomever else can sue for defamation if they think they have a case. (Spoiler: they don’t.)

        Every stupid warning about what bad thing Trump will do if elected is a few weeks away from being proven wrong, BTW.

        1. “When you get an opportunity to decide to actually commit evil actions and hurt people, you will do it eagerly and justify it.”

          I actually won’t do anything of the sort because I’m not involved in any of those decisions and more importantly I am not a sadist who likes seeing people in pain.

          1. Why should anyone believe you if you don’t know the difference between words and actions?

            Why should anyone believe you if you falsely pretend not to understand the difference?

            1. I do know the difference. Do you understand that words have consequences in the real world even if we can’t see them immediately? Because apparently you are pretending that they do not.

              But more importantly, I’m not going to be lectured by you of all people on truth. Here’s what you had to say about the subject when it came to Mitch McConnell lying in 2016 about American’s deserving a voice in SCOTUS selections:

              “You’re still complaining about someone not giving you something you never had coming. You can whine but Daddy, you promised!!!!. Whine as much as you want.

              People who do what Democrats did to Brett Kavanaugh don’t deserve rewards. Be less terrible.”

              https://reason.com/volokh/2020/10/26/associate-justice-amy-coney-barrett/#comments

              You think the truth is a reward for complying with what you want instead of a moral obligation to all. So maybe you should be be “less terrible” and ruminate on your own ethics.

              1. Not sure what you think your point is. Are you holding yourself to the truthfulness standards of politicians now?

                Have whatever standards you want. There’s no reason to believe what you say about anything.

                What were the consequences of those words you claim had consequences?

                1. We don’t know that yet. No one knew for sure what Marx’s words would lead to when they were written. No one knew what Hitler’s would lead to when he first emerged on the political scene. No one knew what the results of Radio Télévision Libre des Mille Collines would be in 1993.

                  And no one knows what the ultimate results of having the leader of a major American political party constantly and loudly accuse others of unspecified crimes and leading crowds yelling for their imprisonment.

                  1. Yeah. Imaginary consequences.

        2. Ben,
          You *do* understand that, in the context of this thread, all anyone is doing is using words. They are not actions (as you yourself noted). Why not give all these posters the same latitude you give to Trump’s volume of written and spoken words?

          1. Because we have seen the acts of Comey and McCabe and Strzok and Page and Sullivan. We saw the targeting of Tom Delay. We saw Obama use the IRS against political opponents. We saw the treatment of Brett Kavanaugh and Clarance Thomas before him.

            We also see Antifa in the streets. We saw the murder of Bernell Trammell. We remember Hodgkinson.

            And just in the past day or two we see this: https://twitchy.com/dougp-3137/2020/12/09/make-them-pay-dem-state-rep-from-michigan-has-a-warning-to-you-trumpers-and-instructions-for-soldiers/

            And that’s just for starters.

    2. Planning an indictment without a specific crime in mind or a specific wrong that must be punished is contrary to everything about American justice and to western legal justice traditions.

      What are you talking about? IANAL, but my understanding is that an indictment in fact alleges specific crimes. You don’t get indicted for “being a crook.”

      1. What charge do you intend ?

  9. Your misnegation in the first sentence is temporarily confusing.

  10. “I do NOT believe that the President’s power ‘to grant reprieves and pardons for offenses against the United States’ DOES NOT allow for a self pardon” (emphasis added), seems to mean “I DO believe that the President’s power ‘to grant reprieves and pardons for offenses against the United States’ DOES allow for a self pardon”. If that’s not what the author meant to say . . .

  11. “An additional argument is that the nature of the power—the power to grant a pardon—provides the power for the President to confer a pardon, much like a gift. Not only does this not make sense if applied to oneself, it also contradicts the longstanding norm that grants to oneself are presumptively unlawful unless expressly authorized–and there’s no such authorization here.”

    There are two contradictory arguments here. Muller’s argument (which is a terrible argument for a variety of reasons) is that a self-pardon is self-contradictory or linguistically non-sensical, like a square circle.

    The claim that a self-grant is presumptively unlawful contradicts this. It’s meaningless to say that a square circle is unlawful, but of course we all know what a self-grant means in this context, which is why we can say it’s unlawful.

    The folks making the case against self-pardons have an uphill battle. The pardon power explicitly excludes cases of impeachment, which means that they chose to exclude other exercises of the power, but not the exercise of the power to oneself.

    1. Agreed. I wasted my time making the same argument above, without having scrolled down to yours.

      Note to self – listen more, talk less.

      1. Your argument above is much more concise and more clearly stated.

        1. And you, Sir, have an impressively enormous….oh wait !

  12. Could King Charles I have pardoned himself following his treason conviction and death sentence? I think the answer to that is very clearly no, and the same principle should apply here.

    1. He was in the hands of Parliament which would have ignored it.

      The entire trial was illegal anyway, it was mere revolutionary justice.

      1. I disagree that the trial was illegal, but I would say that if Trump does try to self pardon, and the Justice Department has a legitimate criminal case against him, the self pardon should be ignored as well. No one should be above the law.

        1. Nobody should be above the law, but the question is actually whether a particular somebody is above the law. That’s a different question if you’re not committed to the notion that the Constitution has to mean only good stuff.

          1. And ignoring a self pardon on the basis of the should rather than the is is itself putting the prosecutor, the judge and the public baying for “justice” above the law.

            Either a self pardon is legal or it’s not. Based on the law, not on our liking for the consequences.

            “This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? “

  13. Tax fraud > a crime with political implications

    I just can’t quite wrap my head around that. Remember- we’re talking about a crime. What crime would we exempt the president from due to a political question?

    I think what you mean to say is that our criminal law is so out of control we’re all guilty of a misdemeanor or a felony several times a day, so you can easily find a way to go after a president for something ridiculous. Seems to me before Trump something like that would be unthinkable due to the political ramifications, but if anyone changed the game- it’s him.

  14. So why is it clear that the president lacks the power to pardon himself?

    He’s off to a bad start. Our profession is not hard enough on this sort of lying. If the law does not clearly support your position, and you say it does, you aren’t being persuasive. You are just lying. Starting off with a big lie is a good way to convince your readers you aren’t worth reading.

    The language of the pardon power itself is ambiguous 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.

    He’s just flipping the burden of proof here. The Constitution says that he can pardon, period. It includes one limit (impeachments), which means under espressio unis, other limits aren’t implied.

    So he has the burden of proving that despite the framers’ deliberate inclusion of one limit (and one that, I might add, implies the power applies to presidents, as presidents can be impeached), they really meant to include this other one and just forgot.

    Second, 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.

    They certainly did. They granted a power to Congress to impeach him, and left open the possibility of prosecution as well. Nobody doubts this. But that is completely orthoganal to whether he can pardon himself.

    And last, but not least, 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.

    This is actually completely contrary to… THE PARDON POWER ITSELF. If the President wants to, he can put anyone else above and beyond the law. Literally anyone. Indeed, he can pardon you over and over to keep you above and beyond the law. The Constitution literally says the opposite of what Luttig would like it to say.

    Finally, I will mention something more important than all these dumb originalist arguments. If a self pardon is issued, it will stick. The current Supreme Court will uphold it. And unlike Luttig’s and Adler’s opinions, theirs actually count.

    1. “THE PARDON POWER ITSELF.”

      The pardon power is itself part of the “law”.

      1. Well, sure, but I am assuming the terms of Luttig’s argument. If the framers really wanted to ensure that no person was above the law in the sense Luttig is saying, they wouldn’t put in a power that potentially put people above the law in that very sense.

    2. They certainly did. They granted a power to Congress to impeach him, and left open the possibility of prosecution as well. Nobody doubts this. But that is completely orthoganal to whether he can pardon himself.

      And they were such fools as to overlook the possibility of a self-pardon? What fool wouldn’t pardon himself on the eve of a Senate impeachment trial that was at all likely to convict? Allowing for post-impeachment prosecution is pointless if the President can self-pardon.

      If a self pardon is issued, it will stick. The current Supreme Court will uphold it. And unlike Luttig’s and Adler’s opinions, theirs actually count.

      I agree with this.

      1. Allowing for post-impeachment prosecution is pointless if the President can self-pardon.

        Not if, as is the case, there are lots of other people who can get themselves impeached besides the President. This bit :

        “but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law”

        is simply establishing that there is no double jeopardy problem in pursuing someone criminally, even if they have already been impeached. This applies generally to thousands of potential impeachees – it’s not particularly about the President.

        The words about impeachment apply to any potential impeachees – the fact that they do not prevent a self pardon for criminal conduct by the President is just one little implication in a sea of other implications.

        If we were looking for a limitation on the President’s power to self pardon, we would hunt for it in the pardon power, not in the clarication to the Senate’s power to try impeachments, that an impeachee can be subject to criminal indictment without double jeopardy.

        1. The ole look at the entire document charade when what you want is not found in the most relevant provision.

          The pardon power does not make an exception for POTUS. Thus, ab initio, any argument is weak sauce that relies upon looking at the document as whole in order to conjure up what was truly expressed.

          But, it is a respectable canon of construction and we are supposed to venerate it instead of holding it in disdain.

          1. I’m not against reading text in context – if there’s some more text elsewhere in the Constitution that is genuinely relevant context for the text we’re reading, fine, let’s read it.

            But the rule allowing “double jeopardy” for impeachment and criminal indictment is not relevant context for the pardon power. It doesn’t inform the pardon power in any direction.

            To be fair, though, simply mentioning the impeachment clause is going one better than the let’s-ignore-inconvenient-words crowd normally go. It’s better than just saying “in the light of the document as a whole” without identifying any particular bit.

      2. And they were such fools as to overlook the possibility of a self-pardon?

        To paraphrase PT Barnum, nobody ever went broke underestimating the intelligence of the American framers.

        1. I always thought it was a paraphrase of H.L. Mencken.

  15. “it would be fully appropriate for the federal government to treat a former President much the same as anyone else for which there was credible evidence of such conduct.”

    Too late for any kind of pretense at equal treatment or the rule of law.

  16. “On the other hand, were he to resign a few hours early, nothing would get in the way of a President Pence pardoning him.”

    Aside from Pence not wanting to retire in shame. He seems to be the sort of guy who’d try to avoid that.

  17. If you are ready to switch party registration, Prof. Adler, I would hand-deliver a registration form to your office. That also would give me a chance to deliver that beer I have owed you, and another item that has been sitting in my office for two years or so with your name (literally) on it.

    The last prominent Republican who switched in this manner received a congratulatory call from Sen. Dick Durbin — for you, I would try for former Pres. Obama. No guarantees, though.

  18. It is a tortured interpretation of ‘grant’ to conclude that a grant somehow cannot be for one’s self. Unless that was written law in 1787, then there is no reason that we should entertain such a definition now.
    As many of the framers of the constitution were not lawyers, we should perhaps read the constitution as would farmers, merchants, and professionals of the late 18th century that they were.

  19. “On the other hand, were he to resign a few hours early, nothing would get in the way of a President Pence pardoning him.”

    He doesn’t even have to resign. He can invoke the 25th amendment, have Pence pardon him, and un-invoke it.

    1. He’ll never do it. But I wish he would. It would be the ultimate middle finger to Democrats (and to the spirit of the Constitutions, rule of law, etc.). But legal? I think almost certainly yes. If you’re gonna bust norms, you might as well go whole-hog.

  20. So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous 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.

    The idea in this day and age that there is a serious and general expectation of constitutional clarity is laughable. And without this, the entire argument boils down to “because I think a self pardon would be icky”.

    1. No it’s worse than laughable.

      There is already constitutional clarity – the text is not ambiguous. There is an unambiguous power to pardon for offences against the United States, unbounded but for a single stated exception – impeachment.

      What Luttig, Adler etc are pretending is that when Article 5 says :

      “”no state, without its consent, shall be deprived of its equal Suffrage in the Senate”

      it is not clear that this applies to Texas. Because Texas is not explicitly mentioned.

      It’s pure gaslighting.

      1. Gaslighting isn’t the right term for it. It’s closer to what Prof. Monaghan called “Our Perfect Constitution”, the notion that the Constitution never allows anything bad or has any loopholes. It’s backwards interpretation- this Bad Thing can’t be allowed, therefore the Constitution must prohibit it.

      2. “There is already constitutional clarity”

        Some clauses are unambigous, others are clear as mud.

        However, Supreme Court constitutional interpretation doctrine has utterly destroyed any expectation of clarity in any part of the constitution.

  21. This is the absolute dumbest argument that has ever been made. Not because it is not an interesting academic question, but it shows how insane and crazy the left has become in bending the rule of law so that it can be applied in a manner to get Trump (a la “Trump Law”).

    1. If there is anything the recent spasm of long-shot litigation has demonstrated, it is “how crazy the left has become.”

      You losers deserve nothing other than the soles of our shoes. And lately, that’s about all you have been getting.

      #ThankYouSirMayIHaveAnother?

  22. On the other hand, were there solid evidence of, say, tax fraud, it would be fully appropriate for the federal government to treat a former President much the same as *anyone else other billionaire for which there was credible evidence of such conduct. [*Edit mine]

    Realistically, it seems to me the tax preparers and CPAs and tax lawyers would get hauled in to court years before Citizen (formerly POTUS) Trump ever saw the inside of a courtroom. I personally think the self pardon question is sort of moot, in this specific case. If POTUS Trump were not a billionaire, I think my pragmatic (not moral) reasoning about a self-pardon would change. A man or woman of lesser means might well try a self-pardon.

    Did the Framers explicitly address the question of a self-pardon? I am quite sure they did in their deliberations. Perhaps they left the ultimate remedy ambiguous (meaning, they did not explicitly prescribe a remedy) on purpose. I must say, reading VC regularly has made me much more aware of when this has been the case (that is, where questions in the Constitution were not ultimately addressed or resolved by the Framers).

    I guess my bigger question as a citizen is why are we really hung up on the question of presidential self-pardons in the first place? From my perspective, every POTUS needs a self-pardon. Why? Every POTUS since FDR has surely ordered the extra-judicial killing of another human being. That is immoral and illegal. Is the man who has authority, influence and power that orders the extra-judicial killing of another human being any less guilty than the man who actually pulls the trigger? He is not.

    Perhaps, as a Republic, we ought to put off directly addressing the self-pardon question until it actually happens.

  23. The arguments put forward in your previous article were truly awful, embarrassing even. These, specifically argument 2, are more persuasive, but they still amount to “he can’t because it doesn’t make sense if he can”. They’re still molehills butting up against the mountain that is the Article II language giving the President unqualified pardon power.

    This is a bug in the Constitution. Pass an amendment to fix it. Nobody will oppose the amendment.

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