The Power to “Un-Pardon”?

In an op-ed in the Washington Post Ken Gormley makes a startling argument:

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.

In the ensuing 800+ words Mr. Gormley never proves that such an act would be constitutional or even legal. He successfully argues that a president pardoning himself would be unprecedented, unseemly, and be construed as an admission of guilt.

Let me save you the trouble of researching it. Here’s what the Constitution says:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

which as you can see is extremely broad. There’s nothing there about “un-pardoning”. Under the common law the pardon power derived from sovereign prerogative. The president’s pardon power as interpreted in the courts is more limited than that not extending, for example, to civil cases. If such an “un-pardon” were a legislative act it would be expressly unconstitutional as a bill of attainder. As an executive order it would be just an abuse of power.

If President Biden were to “un-pardon” President Trump after President Trump had pardoned himself, he would be opening himself up to impeachment and should not be surprised if the midterm elections made that a practical reality.

IMO all of this is a lot of wool-gathering. President Trump won’t pardon himself for the same reason Nixon didn’t and even if he did President Biden won’t “un-pardon” him for the reason that I’ve given.

Whether President Biden would or should pardon President Trump is another question entirely.