Harvard law professor Laurence Tribe has established something of a reputation for coming up with some, shall we say… unique interpretations of the Constitution when it suits his needs. This week is no exception and he’s rolled out a doozy. In an op-ed for the Washington Post, Tribe describes in detail his revulsion with Joe Arpaio and his even greater distaste for the fact that President Trump pardoned the sheriff.
So what can be done about it? The standard answer in legal circles is… not much. But leave it to professor Tribe to reimagine the words and intentions of the founders so a Presidential pardon can be wiped off the record. Here’s how he pictures that happening. (Emphasis in original)
Is this use of the pardon power constitutional? In most cases, however controversial, courts should not second-guess the president’s use of the pardon power. But when the Constitution says that the president “shall have Power,” that does not mean unlimited power. It means power that is not inconsistent with other parts of the Constitution.
For example, the Constitution says “Congress shall have Power To lay and collect Taxes,” but that doesn’t mean Congress can tax white people at a different rate than black people. The Constitution says the president “shall have Power” to make treaties, but that doesn’t mean he can make a treaty that abolishes freedom of speech.
The power to pardon is limited by the Fifth Amendment’s guarantee that no person be “deprived of life, liberty, or property, without due process of law.” That guarantee requires that courts must be able to issue and enforce injunctions to stop constitutional violations by government officials. Otherwise, compliance with a court order would be optional.
Most of that word salad seems to center on the idea that the president’s power of the pardon is absolute unless you really, really don’t like the current president. Note that in defense of his premise, Tribe cites and links to a blog entry from someone who agrees with him and was only writing about it because he was also upset with the Arpaio pardon, not any legal precedent.
Tribe then goes on to offer an additional citation, apparently intended to show you that the power of the pardon isn’t absolute because there was already one Supreme Court case which took up the question. That much is true, but what the professor fails to explore in detail is the fact that the Supreme Court unceremoniously rejected the idea that the pardon in question could somehow be overturned.
The case dealt with a pardon issued by Calvin Coolidge to a speakeasy operator during prohibition. Plaintiffs sought to claim that the crime didn’t qualify as “offences against the United States” as specified in the Constitution. We’ve batted that one around here before and it’s been a bone of contention for many because that phrase is pretty much unique in documents of the founders. But when the Supreme Court examined the question in that case they concluded, “There is no substantial difference in this matter between the executive power of pardon in our Government and the King’s prerogative” as constructed in England prior to the revolution.
I understand that many critics of the President are still very upset that he won the election and will happily chase down any opportunity to undermine him, but attempting to completely reinterpret the Constitution as a means toward that end is a dangerous game. If you were to somehow succeed, that change would ripple forward and could come back to bite you the next time a president you actually like decides to pardon someone. Let’s say someone who, oh, I don’t know… turned traitor to his country and dumped hundreds of thousands of sensitive military documents on Wikileaks?
I’ve taken issue with many pardons over the years, but those are cases of questioning the wisdom of the President in do it, not the power of the President to do it. The real judgement comes not from a courtroom, but from the citizens over the span of history. Something to think about anyway.