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July 21, 2017

Could Prez Trump follow Prez Obama's lead by making notable and significant use of his clemency powers?

The question in the title of this post is my somewhat cheeky effort to put a kind of sentencing spin on the news from the Washington Post that Prez Trump has been "discussing the president’s authority to grant pardons" as part of an effort to limit or undercut special counsel Robert Mueller’s Russia investigation. Here is a bit more:

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

One adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation. “This is not in the context of, ‘I can’t wait to pardon myself,’ ” a close adviser said.

Along with a number of other commentators, I have long complained about the failure of modern President's to make robust use of their clemency powers, particularly early in their terms. I have not had exactly these kinds of pardons in mind, but I am still inclined to be grateful whenever a president is giving any attention to his historic clemency powers.

July 21, 2017 at 10:55 AM | Permalink

Comments

Something like this happened more than 10 years ago here in Kentucky, when Governor Erie Fletcher pardoned several of his aides and former campaign staff (but not himself!) to stave off impending indictments for crimes that could eventually have reached Fletcher himself.

Posted by: Jim Gormley | Jul 21, 2017 11:01:34 AM

Yes, tad "cheeky."

Efforts toward home cooking is appreciated too, including experiencing the joys and routine involved in creating dishes. Doing so to make an unpleasant meal to make someone sick? A bit less ideal. Trump isn't quite someone I would rely on consistency here. More likely to just use his powers for self-aggrandizing purposes. Net, this isn't really a great thing.

Posted by: Joe | Jul 21, 2017 11:24:42 AM

Lost in the cheekiness is the point hat if trump is exploring pardon power, there is an assumption that there will be indictments and convictions for wrongdoing.

Whatever Obama's flaws in this area, there was never a concern that he used the presidential power to benefit corrupt friends and relatives.

Posted by: Paul | Jul 21, 2017 11:54:38 AM

Trump wants to know if he can pardon himself? Let's see: he conspire to commit espionage, to violate campaign laws, to obstruct justice, and to commit sundry other federal felonies, and then he pardons himself and laughs at all the morons who voted for him? Even Thomas and Gorsuch would choke on that one(or would they?)

Posted by: anon2 | Jul 21, 2017 12:14:49 PM

Standing on principle: Was Mr. Wilson's refusal of the pardon noble or foolhardy?


United States v. Wilson, 32 U.S. 150 (1833), was a case in the United States in which the defendant, George Wilson, was convicted of robbing the US Mail in Pennsylvania and sentenced to death. Due to his friends' influence, Wilson was pardoned by Andrew Jackson. Wilson, however, refused the pardon. The Supreme Court was thus asked to rule on the case. The decision was that if the prisoner does not accept the pardon, it is not in effect: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it is rejected, we have discovered no power in this court to force it upon him." Therefore, Wilson was hanged.

Posted by: Dave from Texas | Jul 21, 2017 12:34:51 PM

Not sure there is a constitutional problem with this.

The bigger issue would be whether such actions might trigger a congressional response. I could see legislators in both parties who might react to such a decision by deciding that it was time to formalize the pardon process with statutory guidance on the steps to be taken by an applicant, how the government reviews that application, and the criteria for granting a pardon or commutation. (Such a statute would potentially raise constitutional issues similar to the issues with the War Powers Act.) It's a little premature right now to speculate as to whether such a statute could pass (by veto-proof majorities) and what rules might be contained in the final version of such a statute.

Posted by: tmm | Jul 21, 2017 12:43:21 PM

Paul, the Obama Administration leaned on an IG to help out Kevin Johnson.

Posted by: federalist | Jul 21, 2017 1:14:29 PM

Some discussions note that a pardon might be found to be illicit and grounds for impeachment [e.g., during debates over the Constitution, the possibility of a President using the pardon power to protect their own role in a traitorous conspiracy] or other action (if done after supply of a bribe, e.g., might be subject to bribery charges).

The refusal to accept the pardon seems to be a favorite anecdote on religious websites. I'm not sure how good law that would be today. Cf. Biddle v. Perovich (1927)

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Posted by: Joe | Jul 21, 2017 1:37:40 PM

tmm writes, "Not sure there is a constitutional problem with this." tmm, are you seriously suggesting that The Supreme Court would hold that it is perfectly constitutional for Trump (or any president) to commit various federal felonies -- like distributing drugs, engaging in mail fraud, filing false income tax returns, etc.-- and then pardon himself? I think not. The Founding Fathers would turn over in their graves.

Posted by: Dave from Texas | Jul 21, 2017 1:40:00 PM

Dave, the only textual limitation on the pardon power is that it can't be used to prevent impeachment. Additionally, at least during Watergate, the special counsel concluded that it was not legally possible to charge the President. Apparently, other limitations were discussed at the time of the Constitutional Convention and the Framers concluded that the exemption for impeachment and removal were enough to deal with a potentially criminal president.

More importantly, the only way that there would be a test case would be if the President pardoned himself and, under his successor, a charge was timely-filed. (Is the statute of limitations tolled while a person is President?) At that point, a court would have to decide if the pardon barred the prosecution. I think that any court would first look at other bars (such as the statute of limitations) and dismiss the prosecution on those grounds without resolving the validity of the pardon. I also can't see any administration putting the time and effort into a test case making the validity of such a pardon a moot point.

Posted by: tmm | Jul 21, 2017 1:55:15 PM

The word "pardon" as well as structural or other interpretative techniques can be used to argue that self-pardons are not allowed by the Constitution.

https://takecareblog.com/blog/can-the-president-pardon-himself-well-he-can-try

This would be a "textual" limit too. The power to indict a sitting President as is well known is a matter of controversy. Arguments with bite has been put in both directions.

The test case thing is mostly a thought experiment, but statute of limitations and other avoidance techniques are of limited value, especially if the crime has a long statute of limitations. A pardon still leaves a person open up to some liability, including particularly to state prosecutions. One thing I saw was that an argument would be made that a pardon would close off Mueller's investigation over that specific person, but you would need a lot of pardons to close off all avenues of investigation there.

Anyway, if someone self-pardoned, the Supreme Court would not be the first thing that would come to mind. It would open up a can of worms that would affect other things too.

Posted by: Joe | Jul 21, 2017 2:07:06 PM

I suspect that the President absolutely has the power to pardon co-conspirators, but himself seems doubtful.

Posted by: Erik M | Jul 21, 2017 2:14:00 PM

I would think pardoning aides would be even more problematic from an investigation standpoint if Trump himself were indeed involved. Right now everyone can simply say "I'm not talking with you." and if actually called before a grand jury take the fifth. If Trump issued pardons that option is gone.

tmm,

I would think such a statute would have significant constitutional infirmity. The pardon power is simply vested in the president's sole discretion. I do believe that Congress could limit application of the power by refusing moneys for investigators to plow through applications but that doesn't limit the president's authority to actually grant, only to find worthy offenders. I do not believe Congress has any power to dictate what hoops must be jumped in order for a pardon to issue.

Posted by: Soronel Haetir | Jul 21, 2017 3:27:50 PM

I agree with sorobel. Not sure how the states could bring charges after a federal pardon. I can maybe see it going the other way after a state pardon. But I don't believe in the current dual sovereign crap. Sorry no forum shopping allowed. Pick your court and live with it.

Now the big question on pardoning himself if only for actions taken before taking office. Would be a lot less flak I think

Posted by: rodsmith3510 | Jul 21, 2017 3:41:56 PM

Man I hate auto correct

Sorry Soronel

Posted by: rodsmith3510 | Jul 21, 2017 3:43:29 PM

@Dave fro Texas

Add me to the list of people who think the President can pardon himself for whatever he crimes he has committed, including murder. The ultimate solution to such issue is--as it always has been--either via Congress's impeachment power or via the ballot box.

Posted by: Daniel | Jul 21, 2017 5:25:57 PM

Daniel, surely you are joking. I can see it now: President Trump goes on rampage with AR 16 and mows down cabinet members and 20 Senators before being subdued: 30 dead. Then he pardons himself and starts laughing hysterically. Sure.

Federalist, help us out here!!

Posted by: Dave from Texas | Jul 21, 2017 5:43:43 PM

The basic saying "pardon me" suggests the logical thing that it takes two to tango. You "pardon" other people or other people pardon you. There is also the ancient principle that you can not be the judge of our own case. Exceptions might be cited but seems basic. Of course, Trump can purport to pardon himself, and we can see what happens.

Impeachment is of limited value here. That removes him from office. Limited value for someone who is a murder.

As to pardoning fellow conspirators etc., I think they can do that. The pardons would hold. But, doing that might open one up to impeachment or criminal liability in specific instances.

Posted by: Joe | Jul 21, 2017 6:22:19 PM

(to be clear, not saying Trump is a murderer, but it would be a limited "solution" ... he can of course pardon a murderer, but at least there, it is not total self-dealing)

Posted by: Joe | Jul 21, 2017 6:24:26 PM

For all saying the pardon power is absolute - could a President engage in various types of election fraud that help him win a close election, then pardon everyone involved in the conspiracy? The Pres could further claim impeachment applies only to acts committed while pres, and the fraud happened while as a candidate? Even if the Pres is impeached, you are still left with a VP who become Pres, but from the same election fraud...

Posted by: Paul | Jul 21, 2017 6:27:10 PM

Paul,

I believe the impeachment power is as unlimited as the pardon power. An impeachable offense is whatever a majority of the House and two-thirds of the Senate say it is. And an impeachable offense for one president need not be for another, it is an entirely political process.

I fully agree with the SCOTUS ruling in Nixon (Walter, not Richard) that the courts simply have no power to review impeachment proceedings.

Posted by: Soronel Haetir | Jul 21, 2017 7:03:22 PM

I voted for Trump to produce the type of entertainment here. Left wing, big government, rent seekers getting unhinged.

There is nothing to pardon because no crime has been committed. Nor is there a scintilla of any evidence in our physical universe that any has been committed. The entire attack on Trump is desperate nitpicking to delay facing the reality of policy making, and to assuage the hurt feelings of the losers. They must take comfort in fictitious theories of electoral interference. They cannot face the fact that a majority of real Americans want this elite gone. They hired Trump to issue his signature phrase, "You're fired." Democrats with any asset should enjoy the Trump Effect. They likely made more money November 9, than on any other single day in their lives.

The Trump Effect has been so good to me, I may hire lawyers for litigation against Pennsylvania. To deter.

Posted by: David Behar | Jul 21, 2017 8:19:29 PM

David I concur, Trump has been a showboat so far. No crime has been committed.
Its just idol chit chat, same as for OJ getting parole approved, big fiasco.

I doubt Trump will be impeached, but if dirty laundry appears, he just wont get reelected.

I dont agree with having his family members on staff and attending high level meetings.

Trump is getting better at messing up with his mouth, but time will tell.

Posted by: MidWestGuy | Jul 21, 2017 9:44:27 PM

MidWest: Do you have any assets? Did they jump 17% in one day?

Everyone who is not a parasite or a freak supports Trump.

Posted by: David Behar | Jul 21, 2017 9:55:00 PM

Burdick v. United States talks about that earlier case where the person refused a pardon.

From what I can tell, the person thought accepting the pardon might negatively affect him in another case: "he had nothing to say, and that he did not wish in any manner to avail himself, in order to avoid sentence in this particular case, of the pardon referred to."

I think he was trying to play all the angles available; it wasn't like he was just self-sacrificing himself, though some of the religiously tinged analysis of the case seem to imply just that.

Posted by: Joe | Jul 22, 2017 11:14:05 AM

Lawyer Question.

Does a pardon also preclude all collateral consequences of a felony conviction, such as loss of a license, or disqualification from a conviction related job, such as theft and a cashier job, or pedophilia and a daycare job?

Posted by: David Behar | Jul 22, 2017 3:24:12 PM

@Dave

Yes.

@Soronel

Yep. I agree re: impeachment power.

BTW here is this hilarious article in SLate:

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/no_matter_who_he_fires_or_pardons_trump_won_t_be_able_to_escape_state_attorneys.html

Apparently he has never learned of a thing called the Supremacy Clause. (Although, to be honest, I'd kinda like to see the President be arrested by a state official. Then maybe we can kill the idea of dual sovereignty for good).

Posted by: Daniel | Jul 22, 2017 3:39:27 PM

That @Dave was Dave from Texas and not David Behar

Posted by: Daniel | Jul 22, 2017 3:39:57 PM

@Paul writes, "For all saying the pardon power is absolute - could a President engage in various types of election fraud that help him win a close election, then pardon everyone involved in the conspiracy?"

Yes. This is where Soronel and I agree. The proper solution to a political problem is a political solution. There are three caps on a wayward executive:

(1) Impeachment
(2) Voting him out of office at the next election
(3) His eight year term limit.

All three of those actions provide all the necessary checks there need be for a wayward executive. What I think bothers people is some notion of justice. That the President should not be allowed to get away with crimes that ordinary folk would never get away with. The answer to that is that someone somewhere has to be the boss and that if the people are foolish enough to elect a criminal to the highest office in the land they have no one to castigate but themselves.

Posted by: Daniel | Jul 22, 2017 3:47:30 PM

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

I'm not sure [minus some particulars, maybe] why this would interfere with the ability of the states to investigate and even prosecute, particularly when the pardon power only applies to federal crimes in the first place. OTOH, humor is subjective.

Being boss doesn't mean you have carte blanche. As applied to the President, it does mean immunity to some degree, at least practicably, but surely not completely. If Trump actually murdered someone on 5th Avenue, yes, Cy Vance of the NY DA office might have some work to do.

Posted by: Joe | Jul 22, 2017 4:09:13 PM

Joe,

However there are plenty of places with no state jurisdiction. The entirety of D.C. for example.

Posted by: Soronel Haetir | Jul 22, 2017 5:25:55 PM

I don't think trump could pardon himself or pardon those who were induced to act by a promise of pardon.

Posted by: federalist | Jul 24, 2017 10:41:24 AM

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