Thread by @YAppelbaum

1. A brief thread about a truly obscure episode in American constitutional law that may well become all-important in the days ahead.

2. No president has ever issued a self-pardon. But in 1857, territorial Governor Isaac Stevens in Washington State clashed with the judiciary in an extraordinary episode. Stevens had ordered some settlers arrested.

3. Federal Judge Edward Lander tried to hold a habeas hearing. Stevens declared martial law, and had Lander arrested. When he released him, Lander convened a new hearing—issuing writs of habeas and holding Stevens in contempt, sending Marshalls to arrest him.

4. But Stevens resisted arrest, and had his own forces arrest Lander. The saga wound on—I’m condensing here—but a second judge continued the proceedings, protected by fifty armed men. In the end, Stevens was forced to back down, dissolving martial law.

5. Now comes the interesting part. Lander forged ahead with contempt proceedings. Stevens appeared in court, and mounted a detailed defense. Lander ruled against him, and imposed a $50 fine. And then, Stevens … well, yeah. He pardoned himself:

6. Okay, okay. Technically, Stevens granted himself “respite”—the president would ultimately need to affirm it. But this episode is widely cited as the only directly confirmed federal self-pardon—and as reason to think self-pardons might be constitutional: washingtonpost.com/news/volokh-co…

7. But here’s the twist. If this episode provides a precedent, it’s not that. Because Stevens’s self-pardon was presented to Lander in court—who wasn’t having it. Calling it “a paper purporting to be a respite” he overruled the motion to suspend further proceedings.

8. And then “the fine being paid, the defendant was discharged from custody.” THE FINE BEING PAID. This is the crucial point. Stevens acknowledged the court’s jurisdiction, filed his self-pardon, had it overruled, and paid his fine.

9. (A small note: One historian, in 1936, wrote that “friends of the Governor paid the fine.” That claim has been often quoted since, but the only source he cites is this document—and it provides no reason to believe anyone other than Stevens paid this fine.)

10. (His son’s biography may account for the confusion—it says that his friends and admirers anticipated a large fine and were prepared to raise funds to pay it, but since it was only $50, Stevens paid it himself.)

11. President Franklin Pierce later repudiated Stevens’s entire course of conduct; a Senate investigation lead that body to withhold funding until Stevens was removed as Indian Commissioner. Neither said a word to vindicate his failed self-pardon.

12. Ultimately, the validity of a self-pardon will be up to the Supreme Court. But in 1857, an executive tried to employ the pardon power to grant himself a respite. That attempt was tested in federal court. And—even though it’s been cited as a precedent—it actually failed.