There are worries that President Trump will pardon himself, his family and friends, and the insurrectionists as he leaves office. He has already pardoned or granted clemency to a host of bad actors including Joe Arpaio, Scooter Libby, Paul Manafort, Mike Flynn, Michael Milken, Duncan Hunter, and Roger Stone.
The extent of the pardon power is not known and would have to be decided by the Supreme Court. The mainstream press and talking heads would be well-advised not to report that the pardon power is absolute. It would be better to say that the extent of the pardon power is not known, and that self-pardons, pardons for unspecified crimes, or pardoning certain crimes, like insurrection, would undermine the rule of law.
Could the President pardon himself? Trump has claimed that he has the absolute right. No prior President has exercised a self-pardon, but we have never had such a serially criminal President as Trump. Prior to Nixon’s resignation, the Office of Legal Counsel at the Department of Justice opined that there was no such power of self-pardon. If the Supreme Court found that the President could pardon himself, it would not only subvert the foundational principle that no one is above the law, it would invite future occupants of the White House to engage in crime sprees without fear of consequence.
Could the President pardon Rudy, Ivanka, Jared and others in his inner orbit? The question is for which crimes? There are those who argue that a pardon must describe with some particularity what the crime is that is being forgiven; it cannot be carte blanche. If the Supreme Court upheld the power of prospective and vague pardons, it would deny Congress, the courts and the public important information about our government and the rule of law.
Where there is some agreement is that the President may grant clemency to those who have been convicted or are facing trial, however despicable such a grant may be. Trump’s granting clemency to those who obstructed justice or committed perjury in connection with the investigation into Russia’s interference in the 2016 election smells like a payoff to friends who did not rat on him. Forgiving Blackwater contractors that killed civilians at Nisoor Square that committed war crimes undermines our foreign policy. Granting a pardon to a soldier convicted at court-martial for ordering his soldiers to shoot unarmed civilians is undue command influence in military justice. But, as currently conceived, the President has the power to pardon these individuals, however detestable.
What we also know is that the President cannot absolve himself of state crimes. To the extent that the New York Attorney General is investigating financial crimes committed by Trump, his companies and associates, those will proceed. To the extent that the Georgia Attorney General seeks to charge Trump with violating Georgia election law by trying to force the Secretary of State to “find” votes that would turn the election in Trump’s favor, that sort of prosecution could proceed. If Trump pressured other State officials in Wisconsin, Pennsylvania, Arizona or Michigan to overturn the certified election results, the same applies. If the Michigan Attorney General were to determine that Mr. Trump incited the armed thugs that tried to storm the Michigan State Capital and threatened to kidnap and possibly kill the Governor, Trump could not absolve himself of any state crimes. DC should look to local laws to charge the mob that threatened our elected leaders.
We also know that those who have been pardoned cannot claim a Fifth Amendment right against self-incrimination. To the extent that Congress conducts oversight hearings to determine the extent of Russian interference in our elections, Paul Manafort, Roger Stone and others cannot avoid truthful testimony, including against Mr. Trump. Perjury by them would constitute new crimes for which they could be charged and tried.
Harvard’s Professor Tribe argues that the Manafort and Stone pardons might also amount to obstruction justice if those pardons or promises of pardons hindered a legitimate inquiry into the crimes they committed.
Congress seeks to restrain the pardon power in the Protecting our Democracy Act. It would ban self-pardons, but it should make clear that it applies retroactively. It should make clear that the President cannot receive a pardon by temporarily turning his authority over to the Vice President under the Twenty-Fifty Amendment and having the Vice President grant him a pardon, nor by resigning his office and receiving clemency from his successor, reversing President Ford’s precedent. The Protecting our Democracy Act would also ban pardons made in exchange for a bribe.
Given Trump’s excesses, Congress would be wise to clarify that pardons must be for specific crimes, not ones that have yet to be charged or come to light. Congress should set forth certain crimes as being ineligible for clemency, such as mounting an insurrection on the nation’s Capitol. Congress should establish additional guidelines for pardons. Pardons should not be for family and friends, or those with affluence or influence, or because they aided the President in committing a crime, solely because of that attribute. Pardons should be granted when there has been a miscarriage of justice, as defined by the Department of Justice. Congress might require that pardons be issued no later than ninety days before the end of an Administration so that the election-year politics might restrain unseemly acts of clemency. While the Constitution does not place clear limits on the pardon power, the Constitution also does not limit other rights. The freedom of speech is not absolute. There are instances where certain limitations are constitutionally prudent such as yelling fire in a theater. Prudence and accountability are what we need now.