If Trump pardons himself, Biden should un-pardon him

[Zorro]

Opinion by Ken Gormley

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.

https://www.washingtonpost.com/opinions/2020/12/18/if-trump-pardons-himself-biden-should-un-pardon-him/

[NCjack]

1. Perhaps Pres. Biden should stand aside and let the AG challenge the self-pardon.

[uberblonde]

2. He has seen this Republican party, right?

They'll accept anything they think helps them win.

[uberblonde]

3. He has seen this Republican party, right?

They'll accept anything they think helps them win.

[ProudMNDemocrat]

4. The question then is..."What are you GUILTY of, Mr. Trump?"

Because accepting a pardon is an admission of guilt.. There is much Trump is guilty of.

[dutch777]

5. This is a very good point. It allows us to paint Trump and allies with all the wrongdoing that...

...with a pardon, he no longer gets to say he didn't do it.

[Fiendish Thingy]

6. Silly premise- realistically, self pardon would need to be challenged in court through indictment

If Trump was indicted on any federal charge, he would be arraigned in court, and would have to assert his self pardon as cause for dismissal. It would certainly be set aside and prosecution would proceed. (Certainly Trump could appeal all the way to SCOTUS, be he would lose every step of the way, as a self pardon would give one the power to assassinate at will, including judges, with the only potential consequences being impeachment)

[Shoonra]

7. Trump can be impeached for a pardon

`In the 1798 Convention for Virginia to ratify the Constitution, Madison said that the President could be impeached for granting pardons to his accomplices in a crime. Because the penalties for impeachment include the possibility of denial of any future government office, even after a govt official leaves office he could still be impeached with a view toward disqualifying him from any other office.


So, if Trump pardons himself, he could be impeached - even after he leaves the White House - and, if convicted, be prohibited from holding any other federal office.


There have been contradictory law review articles on whether a President could pardon himself; I suspect he could -- but it would bring an impeachment down on him.