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October 28, 2021

"Limiting the Pardon Power"

The title of this post is the title of this new article authored by Albert Alschuler now available via SSRN. Here is its abstract:

Although our government is said to be one of checks and balances, the president’s power “to grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited.  In granting this power, the Framers deliberately cast structural safeguards aside.  Nevertheless, the presidency of Donald Trump prompted a search for limits.  This Article examines: (1) whether a president may pardon crimes that have not yet happened (or announce his intention to do so); (2) whether he may pardon himself; (3) whether he may use pardons to obstruct justice or commit other crimes; (4) whether criminal statutes should be construed not to apply to the president when they arguably limit the pardon power; (5) whether the Take Care Clause limits the pardon power; (6) whether pardons can deprive victims of due process; (7) whether pardons ever violate the separation of powers by limiting the authority of courts; (8) whether the exception to the pardon power for impeachment cases does more than prevent the president from blocking the impeachment of federal officeholders; (9) whether pardons must specifically identify the crimes pardoned; and (10) whether pardons are invalid when issued as the result of fraud, bribery, or other unlawful conduct.  Applying common-law principles that have limited the pardon power from the start, the Article explains why the pardons President Trump granted Roger Stone and Paul Manafort are invalid and why the Justice Department could seek a declaratory judgment saying so.

October 28, 2021 at 03:04 PM | Permalink

Comments

It's interesting to parse these issues.

Without trying to parse a 63 page article, I think you have a lot of hypothetical arguments, and ultimately a lot of policy decisions.

A limited exception in my view are self-pardons. I think a pretty good argument can be made that is not authorized. This can be done with first principles and reasoning out the nature of the pardon power. Also, as a recent post covered, there probably is some basic rules when you pardon people regarding clarity of what you are doing.

But, even there, you have a few people pushing back. I think you probably can pardon certain people in a way that will (1) be an authorized pardon -- the pardon is not itself invalid (2) open yourself to impeachment or even criminal prosecution. It might be a good idea to apply more limits, but our U.S. Constitution does not.

This is likely to be theoretical as seen by Trump probably doing impeachable things with the pardon power [see the Mueller Report alone] w/o anything much happening. Still, I think so in theory.

The summary notes: " Applying common-law principles that have limited the pardon power from the start, the Article explains why the pardons President Trump granted Roger Stone and Paul Manafort are invalid and why the Justice Department could seek a declaratory judgment saying so." I really have my doubts there.

Again, w/o reading a long article, some flagged a pardon that might interfere with a court protecting its judgment. But, what if the executive argues the judge's ruling was unjust? That's a judgment call. I think impeachment is a check for abuse.

States regularly have more restrictions on the pardon power explicitly in their laws. This might be a good idea. It is not to me what the federal Constitution seems to do. But, I welcome academic exercises arguing otherwise, especially if it helps as a matter of acceptable policy to provide a restraint.

Posted by: Joe | Oct 28, 2021 8:12:18 PM

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