the US Presidential Pardon is not Self-forgiving or Hypothetical Absolution or Preemption of Punishment

The Constitution of the United States does not explicitly state that a President cannot pardon himself ... On the other hand, neither did the Constitution explicitly say that a sitting President could not be indicted/prosecuted. Avirook Sen – January 9, 2021 – https://www.indiatoday.in/world/story/trump-may-try-to-pardon-himself-he-will-fail-1757449-2021-01-09 

Well, what can One say? Avirook Sen comments, but his Comments are really quite commonplace. I mean, they are merely Repetition of what many have stated in Error and with false Confidence. Understanding what the Constitution of the United States of America (USA/US)) intends with the presidential Power of Pardon and whether an incumbent President can be criminally prosecuted and/or litigated in the Civil Courts requires more than Familiarity with what Others have concluded. It needs recognizing the Origin of the ‘American’ Republic – the other Description for the US – and the contributing Factors to that History among which are the (1) Events leading to the why for separate European – especially British – Colonies in certain Parts of North America to form a Self-governing Confederation of Territories, (2) European Lessons of Governance which guided the Minds of the Framers of that Constitution, and (3) Circumstances of negotiating and drafting, and negotiating again before ratifying the said Constitution. I am not going into those Factors in this Piece. It is not necessary. Suffice it to say Conversance with these Factors enables One reasonable Grasp of the Intentions and Expectations of the Constitution fully ratified in 1790 when the last of the 13 Territories joined in. What was responsible for the staggered Ratification of the Constitution by the different Territories if not for ascertaining the Inviolability of the Constitution?  

The Sen Difficulty, in superficie, is Preoccupation with what in “1974 ... Mary C. Lawton, acting assistant attorney general in the” US Office of Legal Counsel (OLC) opined regarding the presidential Self-Pardon. All who think, or believe, they have something to say about whether the US President can forgive the Self should first get acquainted with the three Factors I mentioned above and afterwards direct themselves to the Nuance of the Language in Article II:2 of the Constitution and further examine that Clause in tandem with Article I:3. None of the Commentators I have ever come across – heard or read – on the Subject seemed to have undertaken such Tasks as I have highlighted. They all appear to be disgorging in different Ways the same Stories, irrespective of lengthy Texts, supporting the Side of the Argument they are on; ‘s/he can self-pardon’ or ‘oh no, s/he cannot’. 

Article II:2 states clearly in unruffled English: 

The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Article I:3 instructs as follows: 

When the President of the United States is tried ... 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.

Article II:2 endows the President with the “Power to grant ...” (my emphasis). The Function of ‘grant’ in this Section of the Article is that of a Verb. It describes the Process of the first Person, the President, gifting something to the second Person, the Recipient. Nothing can be clearer that the Pardon is not intended equally for the President to award onto Self. Considering the historical Background I directed Attention to above, those involved with framing the Constitution would not, and indeed could not, have countenanced a Clause in the Document that manifestly encourages Despotism. It is a priori. That the Association of the Territories at the Time was sort of tentative if not fragile would be very vivid in their Minds. 

It is so far-fetched the Proposition that the Constitution was agreed envisaging the President would be able to bequeath the Pardon on himself.1 There are two additional Reasons which are implied against such Suggestion with both Article I:3 and Article II:2 taken together. These are the Reasons of hypothetical Absolution (hypothetical Pardon/Forgiveness) and Preemption of Punishment (anticipatory Pardon/Forgiveness). I will discuss these two further later below. If the President can self-pardon and the Pardon, per se, is hypothetical as well as anticipatory as it is retrospective, nothing stops the Office Holder from setting out deliberately to commit an Offence knowing that s/he can Self-forgive carte blanche on hypothetical Offenses in Anticipation of Charges and Prosecution. Some would argue that there is the Weight of Impeachment for the President to consider. So, s/he is impeached and convicted? How strong are the two Sanctions of Conviction to dissuade a malevolent President - as we have witnessed in Donald J. Trump Sr, the 45th President - from committing Atrocities knowing s/he can forgive the Self – Forgiveness that cannot be rescinded in Law – and that the Impeachment Conviction is the worst that could happen?

These Scenarios of the President committing Offenses and Impeachment laid against the Office Holder are the starkest Ridicule of the double Drivel that the President can use the Pardon on herself or himself and can apply the Pardon hypothetically and in anticipation. If it was intentioned by the Constitution (1) for the President to self-pardon and (2) the Pardon itself  to be hypothetical and anticipatory, then there would not be that Clause of Impeachment. Why? The President can pardon the Self before Impeachment. Thus, it is so unreasonable the Proposition that the President’s Pardon can be given prior to the Articulation of Charges, Trial and Conviction.

Article I:3 further contends with the popularly recycled but mistaken Interpretation of Article II:2 that the Pardon is blanket Forgiveness of all ‘federal offenses’ – retrospective as well as prospective (hypothetical Pardon and anticipatory Pardon) – involving the Person pardoned – wherever that wishful thinking came from. Article I:3 on Impeachment of the President directs: 

Judgment ... shall not extend [beyond] removal from Office, and disqualification to hold ... any Office of honor ...” 

It then advises that:

the Party [now former President] convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. 

Article I:3, therefore states, succinctly and emphatically, that Impeachment does not release the President from facing further prosecutorial Actions on other Crimes s/he has committed. What does this mean for the all-embracing Pardon - discussed below - for the ordinary Citizen? It says, simply, that there is no such Thing. Release from the Guilt of one Crime (Pardon) does not transfer to other Crimes. The Pardon does not preclude prosecutorial Actions on other Crimes committed by the same Person.

We can observe further Contradiction of the interpretational Balderdash that the Pardon for one Crime is Pardon for all Crimes committed by the same Person, ordinarily, from Encounter with the Substance of US Supreme Court Decision in Burdick v. US 236 U.S. 79 (1915). The Case was centrally about whether George Burdick had the Right to reject the Pardon awarded him by President Woodrow Wilson. However, the Core of the Matter really was whether that Pardon extended to the other federal Charges Burdick could likely face at the Time or in the Future. At any rate, I consider the Exercise by the President, as Abuse of the Logic of the Pardon in Article II:2, but Wilson is not the only errant President. Article II:2 is unequivocal that the Pardon is “for Offences against the United States.” Not all federal Offences are such Offenses. That the US Government is prosecuting a Case does not necessarily make that Case an “Offense against the United States”. It could simply be a federal Offense. Burdick does not agree with me here and we will visit that later below.

The Pardon is for federal Offenses of a particular Strain and these are criminal Offences of a political Nature. With Article I:3, we know that if the President self-pardons for a federal Offence, if at all acceptable in Law, s/he, or anyone similarly pardoned, could still be arraigned for further federal Offenses. The Constitution of the United States of America is written in the English Language yet abysmally misunderstood by Communicators, especially with English as first Language, after all, it is from them in the US that the Misrepresentation of the Constitution emerged. Article II:3 also resolves Sen’s Problematic that “neither did the Constitution explicitly say that a sitting President could not be ... prosecuted.“ The Emanation from this Clause is that ‘yes a sitting President cannot be subjected to criminal Prosecution while in Office’. It is again why the Possibility of criminal Arraignments is left open post Incumbency. 

What really is the presidential Pardon in the common Sense? I do not intend ‘commonsense’ or ‘common sense' as generally deployed and understood, as there is no such Thing. I intend common Sense as general Understanding of a Matter stripped of Jargon, if particular to any Specialty. The Pardon in this common Sense is nothing more than ‘Forgiveness’. What does it then symbolize? It signifies Acknowledgement of Blame and the forgiving of that Blemish. Pardon is ‘Forgiveness’, period. By this very Fact, the Process leading to the Pardon acknowledges an Admission of Culpability either by Self-Judgment or Judgment external to the Self.  Burdick agrees this Relationship of Guilt and Pardon. The Pardon recognizes Blameworthiness. In accepting the Pardon, the pardoned concedes erring. The Burdick Decision confirmed that the Pardon “carries an imputation of guilt and acceptance of a confession.” 

Now, let us ask the important Questions of whether the Pardon is all-embracing, that is, (1) retrospective, i.e., the Forgiveness of past Blame, as well as (2) hypothetical, i.e., the Forgiveness of Charges before being stipulated or even formulated; what Charges/Indictments would be proffered. This is my christened ‘hypothetical Absolution’ mentioned earlier on and, as well as (3) anticipatory, i.e., the Forgiveness of stipulated Charges prior to Arraignment or Conviction; the Charges are now formulated but are forgiven before they get to Court or before Sentencing. This is what I identified previously as the ‘Preemption of Punishment’. At times, the hypothetical Forgiveness results in the anticipatory Forgiveness moving from ‘what if you are charged' in the Case of the former to ‘we think or know you will be charged’ in the latter. 

While the Justices in Burdick dealt directly only with the first Question of whether the Pardon is retrospective, their Resolution of that Question answered the other two Questions by Inference. I am not sure they intended such inferential  Conclusions since they made clear that “it is not material to decide whether the pardoning power may be exercised before Conviction.” 

I have come across Writeups from Paul J. Larkin Jr2 and Frank O. Bowman III3 on the US President’s Privilege of the Pardon. I have not looked at those Opinions in detail and I am not going to read them. However, I have browsed the Conclusion4 to the former and the Abstract of the latter for me to understand sufficiently that (i) they contradict each other on the Extent of the Pardon Exclusivity to the President and (ii) I cannot agree with (a) Larkin's incomprehensive Position that the President can self-pardon with the implied Proposition that the Pardon can be hypothetical and anticipatory and (b) Bowman that the Pardon can be hypothetical and anticipatory. Ergo, I am content with my Claims here without Need to critique their Arguments. I have submitted the same Claims in one Form or another in earlier Blogs and Tweets (on Twitter). 

My Rationality on the Pardon of the US Constitution, now borrowed by most of the World, is that it is an Affront to the Law of Nature, a Repudiation of Fairness and an Exemplification of the intrinsic Immorality of the Human Being. The Pardon absolves the pardoned of Accountability and Responsibility. It releases the guilty from the Burdens of Guilt. How can any Human be given this Power of 'God' by two Lines in a Piece of Document called 'Constitution'? This Power of God might be more or less than two Lines in the Constitutions of other Countries. A Pardon must correctly be restitutive in the philosophically-moral as well as judicially-moral Senses. The Pardon should be Acknowledgement by and of the Law that it miscarried its formulated ‘Justice’ and is saying ‘Sorry’ for that Wrong. This is the Humility of the Human of Blood, Flesh and Water.

Although I came to my Rationality of the US constitutional Pardon in Relationship to Guilt on own Reflection, Burdick had beaten me to it Scores of Years before I was born. The Decision observed that the Pardon “... remits punishment and condones infractions of the peace of the State.” It appears, however, that in defining "Amnesty [as] overlook[ing] ... crimes against the sovereignty of the State [which are] political offenses ...” vis-à-vis the Pardon as “condon[ing] infractions of the peace of the State”, the Decision in Burdick suggests the Pardon can embrace all and any Offence because all are “Offenses against the United States.” I am in great Disagreement with such a Proposition. It is untenable. 

The US Pardon cannot apply to either a hypothetical Indictment or to an anticipatory Sentencing/Conviction. Importantly, I have not once come across the Separation of the hypothetical Indictment from the anticipatory Conviction by those insisting that the President can award the Pardon at any Time. This Separation is not only structural to their Notion, and indeed Motion, of the omnipotent and all-embracing Pardon but is also necessary for the Comprehensiveness of their reasoning.  I am not even sure they have considered their Arguments in the Terms of my general Compartmentalization of hypothetical Indictment and anticipatory Conviction. 

It seems to me this nonsensical Proposition of the omnipotent and all-embracing Pardon – it is indeed absolute Bunkum – holds Ground with Reference to the historical Inheritance of the Practise of the Pardon from England. It is an uncritical Reference. The Pardon in the US Constitution is retrospective when reasoned intellectually around the Philosophy of Blame and Sanction. The Pardon has to be forgiving self-acknowledged wrongdoing or wrongdoing adduced by Others and punished. In this Sense, Gerald Ford’s Pardon of Richard Nixon was unconstitutional. Paradoxically, in accepting the Pardon from Ford, Nixon admitted that he was guilty. 

So, if Donald J. Trump Sr were to pardon himself, he would legally be accepting Culpability for any and all Offences within the Circumstances of the Pardon. Of course, he would spin his Self-Pardon as some huge Triumph to his less-than-cognitively-able Army of Followers and Worshippers. In this Scenario of Donald J. Trump Sr pardoning himself, his Vulnerability to Prosecution arising from whatever he had pardoned himself for, is not limited to the Civil Courts. If the Reports are accurate, his Lawyers have again misled him as they did in deceiving him that the US Congress could declare him Winner of the 2020 presidential Election in Defiance of the Votes of ‘the People’ validated by the Electoral College. 

Donald J Trump Sr’s implied Acknowledgement of Guilt in his Self-Pardon would be pivotal to incriminating him in the criminal Courts. Burdick is good Read for Lawyers intelligent enough to decipher between the Lines although Burdick is actually quite explicit. In Reality, however, Trump Sr cannot pardon himself with the Authority of the Constitution. He can do it but he is not the final Word on it. He will need to prove the Durability of his Self-Pardon in US Courts when Prosecutors arraign him. If on the other Hand he transfers being President to Mike Pence and the said pardons him, he would still be wide-open to the Self-Incrimination of the Pardon. 

The Impeachment of a President arises from federal Offences against the Country, i.e., betrayal of the Public Trust or Abuse of Office, Incitement to Violence et cetera. Refer to me in i.e., https://twitter.com/IP_dan_Iyan/status/1339995255333138435?s=19 and https://twitter.com/IP_dan_Iyan/status/1346930348840644612?s=19. and https://twitter.com/IP_dan_Iyan/status/1348461086828331008?s=19 Once removed from Office and proscribed from ever again holding Public Office – the two Sanctions go hand in hand that only the US Senate can pronounce – s/he could be further charged with other Offenses at federal Level and by District of Columbia (D.C.) Attorney-General’s Office and other affected Jurisdictions. Even if s/he resigned from Office in lieu of Conviction of Impeachment, the President could still face criminal Indictments arising from the Situation that could have led to Conviction of Impeachment. The Sanctions on the President on Conviction of Impeachment are, more or less, Forgiveness albeit not understood in the same Manner the Pardon is. These Sanctions in Effect, are Pardons. They are connected to certain Offences and are Absolution thereof. It is the same Way the Pardon is restricted to isolated Offences and Absolution thus.  

There is no Suggestion in Article I:3 that the President could not be indicted on Matters arising from the Circumstances of the Impeachment. In fact, the Language of the Clause implies strongly that this is indeed the Case. However, the now Ex-President is protected broadly by Amendment V5 (Fifth Amendment) just as the Pardon shields. What will ridicule the US Constitution and bring it into Disrepute is when a former President is found guilty in the criminal Courts but is not sentenced to Imprisonment if deserving. It will run counter to the Expectation of Article I:3. It will be disrespecting the Constitution in Deference to the Office of President.  

I am almost certain that most Lawyers, most academic Philosophers in Law and the other Social Sciences, especially in the US Jurisdiction, reading my preceding Remark that Sanctions on the President on Conviction of Impeachment are, more or less, Absolution would dismiss me as not knowing what I am talking about. Yes, I am an academic Philosopher (MPhil/PhM)6 too, and in Political Studies and an original Thinker also.7 I reject status-quo Beliefs – popular and/or academic – which are unsound but given Credibility by Regurgitation. Conviction of the President through Impeachment is, at the worst, Opprobrium that might initiate, or just simply produce, some Element of Disgrace. It is for the Reason that Conviction through Impeachment is not Punishment that Article 1:3 leaves open the Possibility of criminal Prosecution post the Senate Conviction. 

I must not conclude this Essay without noting that the Burdick Decision does not (I) share my Interpretation of Offenses the Pardon in the 1790 fully ratified Constitution was intended to forgive or (II) comment on whether or not the Conviction of the President on  Impeachment is Punishment. The Decision skimmed the former, as we would have appreciated earlier in my Discussion, but did not even mention the latter.  

Endnotes

1The Drafters of the Constitution do not seem to imagine a Female President.

2Paul J. Larkin Jr., The Legality of Presidential Self-Pardons, https://ssrn.com/abstract=3737850 (2020)

3Frank O. Bowman III,. "Presidential Pardons and the Problem of Impunity", 23 N. Y. U. Journal of Legislation and Public Policy (2021).

4Paul J. Larkin Jr, op cit. This Conclusion is most misleading. It mentions Joe Biden instead of Donald J. Trump Sr. Biden was not yet sworn-in as President when the Author published the Paper in 2020.

5Amendment V has generally been misinterpreted by the Courts. My Reliance on it here to protect the now Ex-President follows in the Tradition of Precedents set.

6The 2 Years full-time/4 Years part-time UK MPhil.

7I defended my Dissertation/Thesis orally (Viva Voce) once and I created the Power Theory of ‘Quid Pro Quo’/’Reciprocal Gains’. Awarding Institution is the University of Aberdeen (2002/2003) which actually published my Submission on Google Books. Similarly for my Advanced Diploma in Criminology and Professional Certificate in Prison Research, the Examiners applauded my Submission as “novel analysis of the philosophical questions raised by the issue of criminal punishment" albeit criticized the Structure, I think, but whose Fault was that? Did I not have a Supervisor? How fair was the Criticism? However, the Criticism prepared me for the MPhil. I knew what I would face with a faithless academic Supervisor and how to respond step by step.

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18 January 

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