While America waits for the fruits of the Mueller investigation to ripen, Trump is spending this time stroking his pardon power, and preparing to whip it out when necessary. Others, such as California Rep. Adam Schiff have already gone on record saying that the presidential pardon power is “not absolute,” and that it could not legally be used to obstruct justice.
Schiff says presidential pardon power is not absolute: “The president cannot pardon people if it’s an effort to obstruct justice.” pic.twitter.com/MXzZiVuGWw
— Kyle Griffin (@kylegriffin1) October 29, 2017
Schiff seems to be living in a very different world than is the Trump administration, though. Thus far, it seems the executive branch believes the president can shout, “expecto patronum!” and some sort of orange hologram to emerge and protect cronies from Robert Mueller. At the first sign of danger, Trump apparently checked into whether he could pardon himself, and later, he used it to shield disgraced Sheriff Joe Arpaio from a contempt sentence for directly flouting a federal court order.
We at LawNewz predicted that the Arpaio pardon was the prelude to a Trump pardon for anyone caught up in Special Counsel Robert Mueller’s Russia investigation. Both the timing and the substance of the Arpaio pardon are deeply problematic, and indicate a willingness on Trump’s part to use his power in a manner equally unprecedented and unnerving.
Generally speaking, the presidential pardon power sure looks pretty broad. Under Article II, Section 2 of the United States Constitution:
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The only clear limits on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and that a pardon cannot override Congress’ impeachment power. There seems to be no specific limitation for pardons that might either amount to, or might obscure obstruction of justice. So in the strictest sense, Rep. Schiff may not be entirely correct. A plain reading of the Constitution doesn’t appear to limit Trump’s power to make a last-minute save for a Mueller target.
But let’s be serious. We all know that a sitting president’s pardoning the subject of an independent prosecution for the purpose of protecting his own possibly colluding ass is some next-level corruption. The impropriety of such a maneuver is so obvious that I seriously doubt Article 2’s plain language will amount to more than a minor speed bump.
Simply put, there are lots of reasons why pardoning Russia colluders is a colossally bad idea for Trump. Here are just a few:
- Pardons for Russia colluders might be illegal because they conflict with other parts of the Constitution. In the land before Trump, presidential pardons were used in far simpler ways. But at least since the Arpaio pardon, legal scholars have been opining on the limits of the power when used improperly. Constitutional law professor Martin H. Redish of Northwestern wrote an op-ed in The New York Times about the future limiting of the presidential pardon power:
“The Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.”
If Trump were to pardon subjects of Mueller’s investigation in any way that could be said to circumvent citizens’ constitutional rights, then those pardons would be improper as a matter of law. Of course, at this point, we don’t know exactly which citizens, or which rights might be implicated here, but trust me— if the pardons come to pass, someone will find a way to make this argument.
- The presidential pardon power only applies to federal offenses, and pardons now will virtually ensure that state prosecutions will follow. While Mueller’s investigation will certainly culminate in federal prosecutions, it will also instigate and likely strengthen state prosecutions. According to legal scholars, notably including former Watergate prosecutor Nick Akerman, timing is an important piece of the pardon puzzle. A pre-prosecution pardon would eliminate any potential double-jeopardy defenses for the subjects of a state prosecution. If there’s no federal prosecution, there’s no double-jeopardy, and if there’s no double-jeopardy, there’s nothing to make the prosecution illegal. Another reason a federal pardon could help a state prosecution is that pardons carry with them some serious baggage – they necessarily imply guilt. According to the Supreme Court’s 1915 decision in Burdick v. United States, a pardon “carries an imputation of guilt; acceptance a confession of it.” While a state prosecution would certainly require some independent evidence for a conviction, the guilt implied by a pardon would be both legal and political motivation for prosecutors to aggressively pursue those cases. New York, Virginia and Illinois, have already indicated that they’re standing by, ready to pounce when necessary.
- There’s a good chance that pardoning subjects of the Russia investigation is an impeachable offense. When Arpaio was pardoned, Harvard Law Professor Noah Feldman, declared Trump’s actions clear grounds for impeachment:
“Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.”
If Arpaio’s pardon demonstrated Trump’s attack on the courts, a pardon of Mueller’s targets rounds out that attack on the rest of our government. Pardons have, historically, carried with them the implication of wrongdoing; a presidential pardon of those implicated in a direct attack on American democracy is perhaps the clearest example of impeachable “high crimes and misdemeanors” as could ever exist.
We’re continuing to stand by on Indictmentwatch, and will provide updates as the dance of indictments, pardons, collusion, and corruption continues as it only could in the Trump White House.
This is an opinion piece. The views expressed in this article are those of just the author.