Among the many preposterous and even inconceivable phenomena to have befallen a once-proud nation since last November 8, we now add the spectacle of a president wondering aloud whether he might pardon his own cronies, his family members, and himself.
Here’s a brief primer on pardons.
- What does the Constitution actually say about pardons?
Article II, Section 2 (which is also the part of the Constitution that makes the president the commander-in-chief of the armed forces) says that a president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
- What is the effect of a presidential pardon?
The US Supreme Court has ruled that the effect of a presidential pardon is the complete expunction of guilt. In other words, for one who has been convicted of a crime, the result of a presidential pardon is not the mere insertion of an asterisk on the record of the accused (with the notation, “He’s guilty as hell, but the President let him off”). No — a presidential pardon not only erases the conviction altogether; it also has the legal effect of blotting out the offending behavior that was the source of criminality. For example, if a criminal defendant were convicted of bribery for paying off a federal judge, the effect of a pardon would not just be that the conviction is erased but that, in the eyes of the law, the payoff never happened.
- Can a president pardon his own cronies and family members?
Yes. There is no constitutional limitation on a president’s power to pardon others. Although presidents usually reserve the exercise of this power for people outside their orbits — for political and historical reasons — some presidents have pardoned close associates. Most famously, Gerald Ford pardoned his predecessor and former boss, Richard Nixon. And Bill Clinton caused a years-long brouhaha when, on his last day in office, he pardoned a wealthy donor named Marc Rich. (In fact, Clinton was — naturally — investigated for that pardon and was eventually cleared by none other than James Comey.)
- Does a pardon apply to any crime committed in the United States?
No. A president has the power to pardon a person for offenses against the United States, not all offenses committed in the United States. What that means is that a president may only pardon a person for violating federal law, not state law. For example, a president could not have pardoned OJ Simpson for the robbery and kidnapping crimes Simpson committed in violation of Nevada’s criminal code.
The power to pardon for federal offenses would go a long way in the Trump-Russia context; Trump, his family, and his associates are being investigated for violating federal, not state, laws. Keep in mind, though, that many state laws might have been broken by Trump-family self-dealing, money laundering, and assorted other corruptions.
- Can a presidential pardon wipe out future crimes, too?
No. Take a look at the definition of pardon:
In literature and fiction, one occasionally sees a character dramatically plead, “I beg your forgiveness (or pardon) for what I am about to do!” The law does not recognize this fanciful application of the concept of forgiveness or pardoning. Since an offense is a predicate for a pardon, a pardon can only be given for a wrongful act that has already occurred.
A scholar named Brian Kalt has raised a fascinating prospect. Because a presidential pardon can only erase past criminal wrongdoing, a pardon might itself constitute criminal wrongdoing. If a president uses a pardon to interfere with (in this case, effectively end) a pending federal agency proceeding (like a special-counsel investigation), his pardon could wipe out the potential offenses for which he was being investigated, but the pardon itself could form the basis of a new crime — obstruction of justice. A president can’t pardon himself for the prospective act of pardoning himself, which is a nice segue into our next question:
- Can a president pardon himself at all?
The word “pardon” means something inherently bilateral, something that a sovereign bestows upon a subject. Consider more colloquially that you can beg someone else’s pardon, but you never seek or receive one from yourself. While there is admittedly no explicit limitation on self-pardons, there is no need for one, because a self-pardon is by definition not a “pardon.” Other examples show that the pardon power is subject to inherent limitations like this . . ..
[There is] historical evidence as well. James Madison’s notes of the debates at the Constitutional Convention in 1787 record Edmund Randolph proposing that the pardon power not extend to treason. “The President may himself be guilty,” Randolph worried. “The Traytors may be his own instruments.” James Wilson responded that if the president “be himself a party to the guilt he can be impeached and prosecuted.” Wilson’s view carried the day, and no exception for treason was carved out. But what about self-pardons? They never came up, which is a very telling omission in a discussion about criminal presidents abusing the pardon power. If anyone had thought that self-pardons were possible, Wilson’s argument would not have persuaded them. It apparently went without saying — literally — that self-pardons are not possible.
To my mind, the constitutional exception that prevents using the power to pardon in the context of impeachment also suggests that a president may not pardon himself. Quite obviously, the framers concluded that since the president might himself be the target in an impeachment proceeding, it would be absurd were he empowered to pardon such a target. It stretches credulity to suggest that the same principle wouldn’t apply as to criminal charges (as Kalt points out, that application of this principle apparently seemed so obvious that it went without saying).
None of this, of course, means that Trump won’t try.
That we’re even discussing this — and that we’re discussing it because the President of the United States is discussing it — speaks volumes about the chaos and lawlessness swirling all around us. Tens of millions of Americans were reckless to the point of moral malpractice in casting their votes for a clownish malignant narcissist with their eyes wide open.
If Mueller gets too close to Trump, expect Trump to use and abuse his every constitutional power — the powers his voters handed him — including the power to pardon.