Joe Biden can un-pardon

If President Donald 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.

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.

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.