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Opinion If Trump pardons himself, Biden should un-pardon him

At the end of most presidencies, one of the last things a president does is issue pardons. Here's how past presidents have exercised this power. (Video: Monica Rodman, Sarah Hashemi/The Washington Post)

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.

Read more:

J. Michael Luttig: No, President Trump can’t pardon himself

Aaron Rappaport: It might not be so simple for Trump to pardon his children and Giuliani

Ken Gormley: President Trump dodged a huge bullet

Colbert I. King: It’s a good bet Trump pardons his felon allies. Here’s when that’s most likely.

Laurence H. Tribe, Richard Painter and Norman Eisen: No, Trump can’t pardon himself. The Constitution tells us so.