Pardons, Free Speech, and Mark Harrison
Well, wow! Just, WOW! I posted most recently on January 3, and I have not posted about the January 6 events because I try hard to pass unless I can share something new or different. (Better writers with bigger platforms covered the coup attempt very well; no one needed to hear from me, at least not in the 600-750 word format.) Modesty – reality, more accurately – aside, I have thoughts on self-pardoning, the First Amendment, and a dear, departed mentor and friend.
Article II, Section 2 of the U.S. Constitution grants to presidents the power to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The authority lacks conditions, and that matters. Why or how the president reaches his decisions matters not at all, subject to two limitations.
First, and although the Constitution does not address this issue expressly, a president who seeks compensation in return for delivering reprieves and pardons violates bribery statutes. Does a bought and paid for pardon stand? Who knows, but no president has the right to sell to third parties those rights which the Constitution vests in him or her.
Second, the Constitution says nothing about self-pardoning. Some of us thought Mr. Trump might resign and expect a pardon from his successor, appointed president Michael Pence. Mr. Trump’s decision to sic his deplorables on the Capitol, with threats to kill the Vice President took care of that notion. (Yes, I used the word deplorable and, frankly, I think Hillary Rodham Clinton’s genteel, Midwestern upbringing caused her to pull her punches more than four years ago.)
Literalists might argue that nothing in the language says a president cannot pardon himself or herself. True dat, for sure! Originalists – note that I am focusing on those who think a living Constitution is so much folderol – can offer up the times, where America was running away from the English version of l’etat, c’est moi and the notion that anyone in power – a King, say – could judge himself.
The originalists win this argument eight days out of seven, even with a stacked Supreme Court. But wait, there’s more. Case law requires an acceptance of a pardon, and with the acceptance comes an acknowledgment of wrongdoing. Whether one person can grant and accept something aside, and whether the Constitution ever contemplated a self-pardon, too, an effective pardon requires an acceptance. See, Ex parte Wells, 59 U.S. 307 (1855). The notion that that the pardoned party must accept the pardon makes sense, for those who believe they have committed no crimes might want to have their day in court and pass on a pardon.
Whether an implied acceptance of a pardon might adversely affect Mr. Trump in New York state civil and criminal proceedings remains to be seen. Regardless, however, the self-pardon is not as simple as the simple pass Mr. Trump might want it to be.
The text of the First Amendment states, regarding free speech, states: Congress shall make no law … abridging the freedom of speech … . That’s it and that’s all!
Aggrieved people like to talk about rights, and how someone has taken them away from them. Reality? The First Amendment only applies to governmental action and it includes an exception for speech which incites imminent lawless action. See, Brandenburg v. Ohio, 395 U.S. 444 (1969). Unless the limitation on speech involves governmental action, the First Amendment means nothing.
Lots of complaints about “cancel culture” have come forth recently. Aside from the fact that individuals and businesses decide with whom they choose to associate, those who complain fail to appreciate a simple fact: those parties who “cancel” Donald J. Trump do, with their actions, express themselves. Just like Mr. Trump and his followers. So, even if the First Amendment gave everyone a right to speak freely – as opposed to restricting laws which limit speech – those who complain lack any basis for relief. It’s a free country, and if Twitter thinks you are inciting violence, nothing prevents it from shutting you down.
Mark Harrison left this world on Monday, at 85 and way too soon. Mark was a great mentor and a kind and generous friend. A mensch, too. Mark lived in a sphere where I did not: he was a State Bar President and, with the American Bar Association, the chair of the ABA Joint Commission to Evaluate the Code of Judicial Conduct, from 2002 to 2007. But Mark was also the man who referred cases to me and offered trenchant comments about my work on behalf of making the discipline rules fair for respondents, who face the power of a unified bar and the Supreme Court through which it exists.
Mark never quit. I wonder, often, what happens to the mind and soul when the body dies. If my notion is true – the mind and soul fade away slowly – Mark Harrison is “out of his mind frustrated” that he can’t reach those who matter to right the wrongs.
Godspeed, Mark, and rest assured that the mere mortals you left behind will do our best to fulfill the causes that mattered to you and should matter to all of us. May your memory be for a blessing.