We have repeatedly discussed how legal professionals over the past four years have given increasingly broad interpretations of legal and constitutional provisions to argue that President Donald Trump could be indicted or charged on a variety of different grounds. This includes reliance on interpretations that have long been rejected by the Supreme Court. Some issues are obviously closer than the longstanding question of the president’s self-forgiveness. While I have long claimed (prior to the Trump administration) that a president can forgive himself, I have always said that this is a matter of good faith on both sides. More recently, however, experts have brought the same clarity claims on this issue to reassure the public that the argument for self-forgiveness is “incoherent and inconsistent with the Constitution.” Ken Gormley, president of Duquesne University, is one of those who advocated impeachment and opposed any basis for self-forgiveness. However, he has now gone a step further, claiming that Joe Biden can “forgive” Trump for granting himself a pardon.
The Washington Post appears to have dispensed with any notion of balance by running repetitive and often redundant columns against self-forgiveness without discussing opposing views. This column has now been added to interpretations that have been shown to contradict history, language and the purpose of the presidential pardon. It doesn’t matter. It’s anti-Trump and hence there is a sense of trumpunity from the commitments of accuracy or balance, a longstanding problem with the Post. It reminds me of the earlier argument by Harvard Professor Noah Feldman (who testified with me at the impeachment hearing) that President Trump wasn’t actually charged after his impeachment. This argument was based at least on a specific (if not supported) technical claim to completeness of the procedure. This is simply an argument based on some sort of “extraordinary times that require extraordinary interpretation.” The meaning of the pardon clause does not change by mere will or whim.
In the ultimate understatement, Gormley writes that someone’s forgiveness “might sound strange, even non-constitutional.” It sure does. In fact, it sounds completely absurd. Gormley admits that “[c]Certainly there is nothing in the words of the Constitution or in historical precedent to speak of undoing a self-forgiveness. “However, he insists that this is” because there is nothing that allows self-forgiveness “.
I will not repeat the basis for forgiveness in previous scriptures (here and here and here and here). Yet even those who disagree with the foundation for self-forgiveness did not go as far as Gormley in claiming the right to excuse predecessors. Reference could be made to the 2008 decision when President George W. Bush Isaac Robert Toussie, a real estate developer convicted of email fraud, revoked his own pardon. The reason was that Bush learned that Toussie’s father was a major Republican donor and that 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 pardon. That was also controversial, but it is a completely different matter than revoking an earlier and completed pardon.
The Framers understood that the pardon was indeed absolute. Indeed, figures like George Mason opposed ratification because “the president should not have the power to pardon because he can often pardon crimes that he himself advised”.
The idea of pardoning individuals contradicts the intended effects of pardons to relieve individuals from ongoing threats or obstacles arising from an alleged crime or previous conviction. In Ex Parte Garland about a former Confederation supporter who was not allowed to practice in federal courts. Justice Stephen Johnson Field “Congress can neither limit the effectiveness of its pardon nor exclude any class of offender from its exercise. The benevolent privilege of mercy residing in him cannot be restricted by legal restrictions. ” He added
“[T]The investigation concerns the effects and operation of a pardon, and all authorities agree on this point. A pardon achieves both the prescribed penalty for the crime and the guilt of the perpetrator; and when the pardon is full, it triggers the punishment and erases guilt from existence so that the perpetrator is as innocent in the eye of the law as if he had never committed the offense. If granted prior to sentencing, it prevents the penalties and impediments resulting from the conviction from being combined. If it is granted after a conviction, the penalties and handicaps will be removed and all of his civil rights restored. it makes him a new man, so to speak, and gives him new credit and a new skill. “
Gormley suggests that you can enjoy these perks but suddenly get the penalties back from a successor president. It would defeat the historical and logical purpose of a pardon.
To hold such a view, both the constitutional language and the history behind the presidential pardons would have to be forgotten.