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November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 at 06:17 PM | Permalink

Comments

Much chance of that given the Republican support of Trump in his futile, embarrassing attempt to cling to power. Now I see he is sacking anyone who remotely appears not to be subservient to his idiotic claims of voter fraud and the like. What an appalling image he presents the USA to the world. What happened to democracy? If this were happening anywhere else in the world, the US would be imposing sanctions left and right.

Posted by: peter | Nov 11, 2020 8:01:27 AM

We are not plagued by too much mercy and compassion but by a lack of it. This is evidenced by the large percentage of the population that we incarcerate when compared to the rest of the world. Legislation based on partisan politics and a passion to punish distorts the integrity of the criminal justice system.

Posted by: beth curtis | Nov 11, 2020 11:56:14 AM

While it might be nice to limit self-serving pardons I suspect that any changes to this absolute authority would only serve to get in the way of pardons for those the redemption crowd are actually in favor of. Much better to tolerate minor abuses than to mess with something for reasons that are going to resolve themselves soon anyway.

Posted by: Soronel Haetir | Nov 11, 2020 11:57:04 AM

Soronel, I Agree

Posted by: beth curtis | Nov 11, 2020 2:35:48 PM

Even in the (somewhat) unlikely event of a 50+1 majority, these would seem to be toward the very bottom of the stack in terms of legislative priorities. That's not to say they don't have merit standing alone though. However, I do wonder about the practical benefit. Would it really have moved the needle in the Mueller investigation or impeachment proceedings if there had been such a "clear statement" about Trump committing crimes when he did all those things? It seems unlikely to me.

@beth: If you believe that even an iota of "mercy and compassion" factored into any of the Trump pardons/commutations, well, I'm at a loss for words. Likewise, I think it would be a distortion of justice _not_ to punish the likes of Stone, Arpaio, D'Souza, et al. Doing so with passion would be encouraged too.

@Soronel: I hope you don't seriously think that anyone would fail to distinguish between the formal process going through the office of the pardon attorney etc. and garbage one-offs of the type that Trump did. Condemning the latter obviously in no way impairs the former. And surely you must be thinking about some other abuses, because the ones at issue here were hardly "minor".

Posted by: hardreaders | Nov 11, 2020 11:49:17 PM

hardreaders,

No. I am simply saying that making the formal process any more difficult (even if by only making it mandatory) would likely turn out to be a much bigger problem than self-serving pardons in a president's last days in office. Look at the states that have gone similar routes. in many of them the formal process of a Pardons Board (under whatever name) is used to sheeld the governor from having to make those decisions rather than recommending clemency on anything approaching a regular basis.

Posted by: Soronel Haetir | Nov 12, 2020 11:49:03 AM

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