Read on Twitter
1.Ken Gormley says his executive unpardoning idea “might sound strange, even extra-constitutional.” In fact, it wd be UNCONSTITUTIONAL even though I agree a self-pardon, if issued, should be judicially declared void if invoked as a defense to prosecution https://www.washingtonpost.com/opinions/2020/12/18/if-trump-pardons-himself-biden-should-un-pardon-him/?outputType=amp
2. The reason is that even a pardon that’s subject to invalidation by a court is an entitlement that can’t be taken from its holder without due process of law. See Amendment V.
3. Just as Trump has no authority to decide on his own that he’s entitled to grant himself a pardon, so Biden would have no authority to decide on his own that Trump’s self-pardon isn’t worth the paper it’s written on.
4. The rule of law is a two-edged sword. It implies vital even though unwritten limits on every grant of governmental power, including the pardon power of the president.
5. Just so, the rule of law, including due process, implies both that SCOTUS should hold that no presidential self-pardon would be valid but that no unpardoning decree has validity either.
6. This analysis matters despite the silliness and political implausibility of the Gormley idea, which he might’ve floated tongue-in-cheek, because it reminds us of the implicit constitutional framework that governs us all.
7. Even unserious ideas create opportunities for serious thought. Teachable moments can be found in the strangest places.
