We recently discussed the arguments for and against the presidential pardon – a debate that has raged among academics for decades. Some of us believe that the lack of a restriction on such pardons should determine the day for the interpretation of the Constitution. Judge Richard Posner discussed the issue in a commentary and concluded that “from the breadth of constitutional language in general, it has been deduced that the president can actually forgive himself.” Others believe that the intention against such self-treatment is clear, even when the language is silent. It is noteworthy that while we disagree on this interesting historical and constitutional issue, we practically agree that such pardons are inherently abusive and should not be granted. This is a bona fide disagreement, and I have never argued that the answer is clear. I have great respect for many on the other side of this debate, including former Judge Michael Luttig, who just wrote a thoughtful column in the Washington Post arguing against such self-forgiveness. I recommend that you read the entire column, but I wanted to address some of the key points.
Michael Luttig served on the United States Court of Appeals for the Fourth Circuit (1991-2006) and served as Assistant Attorney General for the Office of Legal Counsel at the Department of Justice (1990-1991).
One of the things I like about this column is that Luttig is honest about the lack of clarity. He also rejects some of the arguments that I also challenged earlier.
Luttig notes, for example, that shortly before Richard Nixon’s resignation, the acting Assistant Attorney General of the Department of Justice tentatively stated that there was no power to forgive himself. However, this was a single line without analysis, and Luttig agrees that she “can hardly be considered an authority in this area”. He also rejects the argument put forward by Professor Larry Tribe and others that the language in Article II, Section 3 clearly states that the President “should see that the law is faithfully carried out”. Here, too, Luttig admits that this language is not enough to act against self-forgiveness. He notes how I have it “[t]This begs the question as does the textual argument for self-forgiveness. If the Constitution allows a president to pardon himself, there can be no argument that the president failed to execute the law when he was pardoned. “
Luttig offers three reasons for reading a bar about self-forgiveness. First, while the language is ambiguous, it faces “a constitutional expectation of clarity if the Framers intended to endow the President with such extraordinary power – a power in the sovereign that the Framers little, if any, knew. “I am not convinced on this point, although it is clearly convincing. The same argument can be made the other way around. If the authors believed that a president could not benefit from a pardon, it would be an obvious qualification to indicate so in the text. There has been considerable debate about the dangers of a president in usurping or abusing power. However, this was never pronounced as an implicit restriction. Additionally, the Framers may not have assumed that this power was so “extraordinary”. For a long time, the King of England was of the opinion that for reasons of immunity, he was legally “not doing anything wrong”. Most importantly, the federal pardon power (as noted in the criticism of Professor Tribe’s reasoning) does not affect or negate state laws. In the early republic and much of our early history, state law (not federal law) was the primary source of law enforcement and litigation. This is by no means a conclusive refutation to the point, but it is certainly worth looking at in return.
Second, Luttig argues that “in the impeachment provisions of the constitution, the drafters clearly reflected that the president cannot break criminal law with impunity.” Again, as I pointed out, this point confuses very different provisions with very different functions. Impeachment relates to the status of a public official, while charges relate to the individual. A self-pardoned president can still be charged (and in fact, such a pardon can be factored into the number of impeachments, although such controversial pardons occur at the end of a term). In addition, the same could be said of low-ranking officials like Aaron Burr, who has been accused of treason. Nobody has suggested that a president cannot forgive a vice president for treason. As mentioned earlier, a presidential pardon does not prevent prosecution of a wide variety of state charges – criminal codes that increasingly mirror the federal code.
Finally, Luttig argues that “a power for the president to apologize for all crimes against the United States that he has committed would seriously violate the enlivening constitutional principle that no man, not even the president, goes beyond the law.” Again, I agree with the feeling, but not with the conclusion. I also believe that self-forgiveness hurts our sensitivity and is self-trafficking. However, this does not mean that a president is above the law. Luttig himself admitted that the power of pardon is part of this law. I recognize that this is going to be circular on both sides, but does not significantly favor constitutional interpretation. After all, the president is not above the law. He can still be prosecuted in state courts. I recognize that this means that he will be pardoned in relation to United States law. However, the framers may have good reasons not to limit performance in this sense. The constitution was written as a time of not only political division but also political violence. John Adams and the Federalists actively sought to kill their opponents under the abusive Alien and Sedition Acts. Some framer might have considered the pardon power to be justified at such times. The problem is that the record is practically silent on the subject, but one cannot assume the intention of prohibiting self-forgiveness without considering the possible alternative intention.
Where is that for us? With a really interesting constitutional and history debate that has been raging for decades. We can have this debate without claiming certainty and maintaining courtesy. We might be on our way to answering that question, though I still ask if anyone other than a federal prosecutor is recognized as facing such challenges. I still hope we don’t get to that point, but Judge Luttig’s column is an excellent representation of the case for banning the President’s self-forgiveness.