Tuesday, June 05, 2018

Riggs v. Palmer on Presidential Self-Pardons

Mark Graber

In a series of events too improbable for a made for television movie or Brian Kalt’s wonderful Constitutional Cliffhangers, the president of the United States is murdered in Washington, DC.  Suspicion falls on the former Vice-President, now President of the United States. Five witnesses, all of whom pass lie detector tests, claim to have seen the new President gun down the old occupant of the White House.  The new President’s fingerprints are found on the murder weapon.   Before further investigation, however, the new President exercises his power as Chief Executive and pardons himself.  Aware that the Speaker of the House is a member of the other party, partisan members of Congress stall off impeachment. They insist that the former Vice-President has a right to the office, even if he has murdered the old President, because the Constitution mandates that the Vice President take office upon the death of the President, no matter what.  They justify the pardon on the same basis.

Common law fans may recognize the analogy to Riggs v. Palmer (1889), a law professor hypothetical come to life.  Elmer Palmer murdered his grandfather in order to gain his inheritance.  Palmer pointed out that New York law required strict adherence to the terms of the will, no matter what.  The New York Court of Appeals gave Palmer the proverbial finger.  Judge Earl’s opinion bluntly declared, “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”

Riggs v. Palmer explains why neither the fictional Vice-President who gains office by murdering the President nor our actual President have a right to their office and may pardon themselves for the crimes they have committed to gain that office.  Judge Earl correctly points out that all statutes are read in light of common sense and common law.  That common law teaches both that "no one shall be permitted . . . to found any claim upon his own iniquity" and, as discussed in Bonham’s Case (1620), no person may be a judge in his own case.  A President may no more escape justice for their crimes, particular the crimes they have committed to gain the presidency, than a murderer may claim the right to inherit from their victim.

The last part of the hypothetical raises a disturbing question that law does not answer.  Has American politics reached that stage of corruption where one party would tolerate a known criminal as president if the alternative was empowering the other party?

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