Donald J. Trump is trashing even more of the Constitution on his way out the door. This time, it’s Article II’s pardon power.
No surprise there: Trump has long shown his eagerness to pardon his cronies. His pardon spree began, controversially, with Joe Arpaio, the former sheriff of Arizona’s Maricopa County, who was convicted of criminal contempt for violating a court order directing him to halt his immigration roundup policy. Trump pardoned Arpaio in 2017. This past July, Trump commuted the sentence of his pal Roger Stone on seven felony counts. Most recently, Trump gave a sweeping pardon to his former National Security Advisor Michael Flynn, who pleaded guilty twice to making false statements to the FBI and is implicated in a number of other potential no-no’s, including secretly lobbying on behalf of Turkey.
Over the past couple of days, we learned that his “lawyer” Rudy Guiliani reportedly discussed a preemptive pardon with Trump; that Trump has floated pardons of his three eldest children; and that since August, the Department of Justice has been investigating a potential pardon-for-pay bribery scheme that it inadvertently uncovered in conducting a sweep of materials obtained through an unrelated subpoena.
It would not be unreasonable to expect pardons of a slew of other Trump loyalists, including:
- Paul Manafort, whom a jury convicted of tax and bank fraud;
- Steve Bannon, Trump’s former White House strategist who was arrested and charged with defrauding donors to a nonprofit supposedly involved in building the elusive southern border wall;
- Rick Gates, who worked with Manafort but cooperated with prosecutors after pleading guilty to lying to federal agents and other crimes; and
- George Papadopoulos, a former foreign policy advisor on the 2016 Trump campaign, who also pleaded guilty to lying to investigators in connection with former Special Counsel Robert Mueller’s probe of Russian interference on Trump’s behalf in 2016.
Politically tinged pardons are not new. President Gerald Ford famously—or infamously—pardoned Richard Nixon in 1974. Newsweek correspondent Tom DeFrank later recounted, “No one could believe it.” Among a raft of pardons issued on his last day in office, Bill Clinton pardoned his half-brother Roger Clinton, who had pleaded guilty to distributing cocaine. In his last month in office, George H.W. Bush pardoned six people in connection with the Reagan-era Iran-Contra scandal, including former secretary of defense Caspar Weinberger. Special prosecutor Lawrence Walsh, who had investigated Iran-Contra, criticized the pardons as a fait accompli: “In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.”
Trump is likely to get away with this pardon spree, as well. The difference is that he could cement a precedent that converts the pardon power into a presidential license to commit federal crimes while in office. Although scholars mostly agree that the pardon power is vast and virtually limitless, there is no doubt that the Framers anticipated some measure of accountability for presidential crimes. The problem is that, these days, the other means of holding presidents accountable—including formal processes like congressional investigations and oversight, impeachment, and possibly even indictments, and also informal processes like political backlash and tarnished reputations—have become nullities.
Trump doesn’t care about his reputation—because he doesn’t have to. No low is too low for him, for the Republican party, or for his millions of adoring supporters. By acquitting Trump on abuse of power and obstruction of Congress without a trial, the Republican-controlled Senate handed over Congress’s oversight power to the presidency, effectively gutting the ability to engage in meaningful congressional scrutiny because presidents can now ignore subpoenas with impunity. The Nixon- and Clinton-era internal DOJ policy against indicting sitting presidents lops off the judicial branch as a mechanism for holding criminals in the Oval Office accountable during their terms. And although Senate Republicans pointed to elections as the proper method to address wrongdoing in the White House in the midst of the Ukrainian quid pro quo scandal, they are now largely in lockstep with Trump’s fraudulent claims of a fraudulent election, as well as his unprecedented legal assault on thousands of duly cast ballots.
What’s a constitutional hawk to do?
Well, it’s conceivable that the U.S. Supreme Court might draw a boundary when it comes to the pardon power. Article II states that “The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Because the Framers rejected additional conditions—such as an exception for treason, for example—some scholars believe that no limit on this language would be constitutionally acceptable. “Shall” means “shall,” in other words. But that’s not how the word “shall” has been construed in other parts of the Constitution, including Article I’s lodging of legislative power in the Congress (presidents also make laws by executive order and through agency regulations, for example).
Moreover, in Knote v. United States, the Court in 1877 expressly confined the scope of the pardon power to exclude return of money paid to the U.S. Treasury as part of a criminal sentence. Money can’t back come out of that pot without an act of Congress appropriating a payment. “However large, therefore, may be the power of pardon possessed by the President,” the Court wrote, “and however extended may be its application, there is this limit to it, as there is to all his powers,—it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.”
Exhortations of an absolute pardon power are thus irrefutably overblown.
The wrinkle here, however, is—as Trump himself recently complained to Fox Business host Maria Bartiromo regarding Joe Biden’s election win, “The problem is it’s hard to get into the Supreme Court.” Unless DOJ decides to prosecute a pardoned offender again, the propriety of a pardon is unlikely to reach the courts. (One possible but highly unlikely exception is the Flynn pardon, which U.S. District Judge Emmet Sullivan still has pending before him on the government’s motion to dismiss the case due to the pardon.) Even harder to fathom is litigation over a presidential self-pardon. While it is possible to make a strong case that the pardon power does not extend to a president pardoning himself, that argument has not been tested in the courts, and a Biden administration is unlikely to spend precious political capital on prosecuting a former president, which is the only way the legitimacy of a self-pardon could get before a court.
America is left with only unappealing options: a constitutional amendment to the pardon power, which is virtually impossible to achieve, or reliance on voters to elect presidents who won’t abuse the power of the office in the wake of suspect pardons before their terms.
In Federalist No. 74, Alexander Hamilton acknowledged that “there are strong reasons” for invoking Congress as a check on the pardon power (the Supreme Court has since held that Congress cannot pass legislative restrictions). But, he reasoned,
there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.
Hamilton thus assumed that presidents would mostly do the right thing, and that additional checks are unnecessary. Sadly, history has proven him wrong.