The Pardon Problem

President Donald Trump has done significant damage to the institutions, norms and traditions of American democracy. Democrats have worked to limit the damage these last four years. Now, with Trump about to leave office (we hope), it’s important that Democrats remain on the side of democratic norms and traditions. I’ve argued that “the first post-Trump presidency should be a return to democratic norms and traditions, not a shift in the angle of attack on those norms and traditions, from the right wing to the left wing.”

One of the institutions of American democracy is the presidential pardon power. The pardon power is all but absolute, and it’s important that it remain that way. Democrats should resist the temptation to attack the use of the pardon power, just because that power remains for seven more weeks in the hands of Donald Trump.

The constitutional provision governing presidential pardons contains only two textual limitations: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” The first limitation is that the president may reprieve or pardon only crimes against the United States – federal crimes, not state crimes. Second, the president may not protect a federal official from impeachment.

There are probably other limitations that are not explicit in the constitutional text. Most importantly, it’s well accepted that the president may not pardon a person for crimes the person has not yet committed. On the other hand, preemptive pardons have been issued – pardons issued to people who have not yet been convicted of crimes. The most famous of these was Gerald Ford’s pardon of Richard Nixon before Nixon had been charged, much less convicted, of any crime. Still, there is some question about the constitutional validity of preemptive pardons, because the Supreme Court has never ruled on them.

Most pardons are issued after the judicial process has concluded, and those pardons are typically limited to the criminal convictions that have been entered. But some pardons have been broader: Nixon was pardoned for all federal crimes he “committed or may have committed or taken part in” during his presidency; Trump pardoned Michael Flynn for “all possible offenses” within or related to the investigative authority of former Special Counsel Robert Mueller. These “blanket pardons” have not been tested in court, so their validity is uncertain.

It’s also well accepted that the president’s use of the pardon power can itself be a criminal offense – for instance, issuing a pardon in exchange for a bribe, or issuing a pardon in order to obstruct an investigation into the president – although it’s not clear that the pardon itself would be invalidated by the president’s criminal conduct in issuing it. Similarly, if a president procures the commission of a crime with the promise of a pardon, the president might well be guilty of conspiracy to commit the crime, or of aiding and abetting the crime, even if the pardon itself remains valid.

Finally, there is the question whether a president may pardon himself. There is a substantial argument against allowing self-pardons, but the constitutional text does not rule them out. Since it’s never been done, it’s never been challenged, and we don’t know how the courts would rule.

I have a particular interest in the breadth of the pardon power. As a law student 40 years ago, I helped research and write a manual for lawyers representing death penalty defendants in Florida. The manual was intended to assist lawyers seeking commutation of death sentences.

Our research found that the pardon power of the president, and of most governors, is nearly unbounded. A pardon is not a judicial act, in which the law is applied to the facts, subject to review by appellate courts, but an executive act taken despite the law and the facts. Precedents do not apply – the fact that a pardon was or wasn’t granted in a previous case has no relevance to the propriety of a pardon in the next case, even if the two cases are identical. A pardon is not an expression of justice, constrained by rules, but an expression of mercy, constrained only by the individual discretion of the pardoning authority. That discretion comes with all of the philosophical, partisan and personal inclinations and biases of the individual exercising it.

Many pardons express the belief that the legally applicable rules worked an inappropriately harsh result in a particular case – so, for instance, a governor might pardon a criminal who was sent to jail for life under a “three strikes” law, where the third strike in question was a minor crime, maybe a petty theft. Many pardons apply current norms to old convictions – a governor might pardon a criminal who was sentenced under the harsh anti-drug laws of the 1980s and 1990s. As a liberal skeptical of the infallibility of our criminal laws and our criminal justice system, I want to maintain a broad executive pardon power.

Since I believe that the pardon power is, was intended to be, and should be, broad and discretionary, I cannot accept an argument, just because the federal pardon power is currently held by President Trump, that the pardon power should be constrained. To accept that argument only because of the circumstance of the person who holds the power today would itself be an attack on a constitutional institution.

Reports are flying around that Trump is considering pardoning three of his children, Don Jr., Eric and Ivanka; his son-in-law, Jared Kushner; and one of his lawyers, Rudy Giuliani. Some Democrats and media commentators are arguing that there would be something improper about such pardons. But presidential pardons for relatives and associates are hardly unprecedented: just 20 years ago, for instance, on his last day in office, President Bill Clinton pardoned his half-brother, Roger Clinton; his former business associate, Susan McDougal; and a big campaign contributor, Marc Rich. No Democrat who wasn’t apoplectic with outrage then has standing to get righteously red in the face now.

You can’t argue that the power to pardon is absolute when you approve of its use, like in “three strikes” cases or death penalty clemency cases, but is constrained when you disapprove if its use. If Bill Clinton can pardon Puerto Rican nationalists without question, then he can pardon his half-brother equally without question. If Donald Trump can commute the life sentence of Alice Johnson, a first-time drug offender, without question, then he can pardon his children equally without question.

One of the more spurious arguments commentators are making is that no one needs a pardon who isn’t guilty. But a preemptive pardon does more than prevent a criminal conviction – it prevents a criminal prosecution. Lots of people are prosecuted and found not guilty, and, assuming preemptive pardons are constitutionally valid, the very point of them is to protect people from prosecution.

I personally am betting that Trump will pardon his family, his most loyal associates, and maybe even himself. Few people not already opposed to Trump will be disturbed by this; Trump will easily be able to convince his base that the pardons are necessary – not because anyone is actually guilty of anything, but because the evil, corrupt Biden administration will resume the persecution of Trump that the evil, corrupt Obama administration began.