Of Pardons and Presidents: Why Trump Can But Shouldn’t Use His Power To Pardon His Family and Aides

 Below is my column in the Washington Post on the controversy over the possible use of pardon authority by President Donald Trump to protect his family and aides involved in the Russian investigation.  Trump’s tweet reference to his “complete power to pardon” fueled rumors that he is considering pardons, including a possible self-pardon.

 

President Trump is reportedly looking into using his pardon power in response to an expanding special counsel investigation of Russian influence in the 2016 election. If he really did pardon his aides, his family or himself to head off Robert Mueller’s inquiry, the move probably would be constitutional but ultimately self-defeating for the president.In using his power to pardon potential witnesses against him, Trump probably would convert a weak criminal investigation into a full-fledged impeachment effort. In 1833, Chief Justice John Marshall upheld a presidential pardon by Andrew Jackson by saying that a pardon is “an act of grace” by a president. A pardon in these circumstances would not be viewed as an act of grace, but a gratuity from an isolated president.

Trump clearly possesses the authority to pardon associates and family members under Article II, Section 2 of the U.S. Constitution, which states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Although presidents have tended to wait for convictions before issuing pardons, Trump can do so in anticipation of federal charges. In  Ex parte Garland in 1866, the Supreme Court ruled that the pardon power “may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” That is precisely what Gerald Ford did when he pardoned Richard Nixon before any charges were brought against him.

The issue of whether a president can pardon himself is one of the unanswered questions of the Constitution; it has never happened in the history of our republic. Even Nixon did not stoop to a self-pardon, although he did research it. Neither did Andrew Johnson or Bill Clinton, both of whom were impeached by the House but not removed from office by the Senate. Such an act would make the White House look like the Bada Bing Club. After a self-pardon, Trump could wipe out the Islamic State, trigger an economic golden age and solve global warming with a carbon-eating border wall — and no one would notice. He would simply go down in history as the man who not only pardoned his family members but himself.

Pardoning his associates at this stage would clearly have a tactical benefit, but the historical and political costs of that would be immense. The most obvious reason for issuing pardons now would not be to protect any of the key people from jail but to limit Mueller’s leverage over witnesses. Mueller has selected a team of prosecutorial heavies, some of whom are known for flipping witnesses and using pressure to secure their cooperation. A pardon removes that option and reinforces the ability of close associates to take a hard line with investigators.

Of course, the use of the pardon power to protect the president’s political allies and family members would be legitimately decried as an abuse. It would not, however, be unprecedented.

President Thomas Jefferson pardoned Jeffersonian Republicans accused of treason under the Alien and Sedition Act. He also issued a pardon for Erick Bollman that would have allowed Bollman to testify against Aaron Burr in 1807. Jefferson and Burr had received the same number electoral votes for the presidency (a tie broken by Alexander Hamilton, whose own conflicts with Burr would later lead to the duel in which Burr killed him). After Burr became vice president, Jefferson wanted Bollman to testify against Burr for alleged treason in plotting with the British to create a new country out of territory in the Southwest and Mexico. Bollman, however, refused to accept the pardon and thus did not testify.

The most recent abuse of pardon power was by Clinton. He waited until his last day in office to pardon billionaire Marc Rich, generally considered one of the least worthy recipients of a pardon in history. Jimmy Carter denounced the abuse of the pardon power for Rich as “disgraceful” and attributed Clinton’s decision to “his large gifts.” Worse yet, on the same day, Clinton pardoned his half-brother, Roger Clinton, in an open abuse of pardon power to benefit his family.

Trump could attempt to justify pardons on the basis that any mistakes committed last year were simply the result of novice aides unfamiliar with politics. After all, in 1795, George Washington pardoned the leaders of the Whiskey Rebellion, justifying his decision by dismissing one of them as “little short of an idiot.” The idiot rationale, though, does not sit well with Trump’s “anyone would have taken that meeting” defense. Nor would it be in keeping with Trump’s carefully maintained public image of himself and his children.

Some of Trump’s aides could obviously use a pardon. Paul Manafort and Michael T. Flynn are facing credible claims of violating the Foreign Agents Registration Act. However, FARA violations are almost uniformly addressed administratively, not through criminal prosecutions. Indeed, there have been only three prosecutions under FARA since 1966, when the law was last revised. Nevertheless, prosecutors could threaten a FARA charge to induce cooperation. Likewise, Donald Trump Jr. and Jared Kushner will be questioned before congressional committees starting next week; the risk of false or misleading statements will be at their apex. One such false statement to investigators can be charged as a violation of 18 U.S.C. 1001, or a false statement under oath to the committees can be charged as perjury. That can be considerable leverage for prosecutors.

But pardons would not end the investigation. Even if everyone were pardoned, Mueller could — and probably would — issue a report to Congress. Likewise, the congressional investigations would continue. Indeed, with pardons, witnesses could lose protections against self-incrimination and could more easily be forced to testify. New crimes such as perjury could fall outside of the pardon, and such a pardon would not protect against state charges. Finally, the difference could be that the focus would shift from potential counts for indictment to counts for impeachment. That change is not an improvement. The existing claims of criminal conduct on Trump’s part are relatively weak and speculative. To move from the legal to the political forum is to leave strategic high ground for a quagmire.

Tactical pardons are like burning bridges to slow an investigation. That has rarely stopped a determined foe. Indeed, it tends to encourage and swell the ranks of opponents.

In the end, a pardon of Trump’s allies and family — let alone himself — would destroy any legacy of Trump’s and demean his office. The presidential pardon remains one of the most majestic and storied powers of our Constitution. Hamilton once stated that the unfettered power given to a president reflects its foundation in “humanity and good policy.” Neither would justify pardons at this stage of the investigation.

151 thoughts on “Of Pardons and Presidents: Why Trump Can But Shouldn’t Use His Power To Pardon His Family and Aides

  1. Why do you bother youself with this exrrcise? Roger was never part of the admin. Jared is impeachable….even without advice and consent. This is a congresssional issue…. ghost ence a we the people issue..
    .but we are distracted by so many issues…but not distractected enough …there will be gillotines. I promise you that proberbial. Look at trump…did I put him there? His people are pist…..and he can’t stop that. He thinks delusional it is about him. He is wrong. The passion that got him elected will prevail. It ain’t re: trump. That’s where you know it alls go wrong.

  2. This seems like a very objective review of the Executive’s power to pardon and Legislative power to impeach.

    President Trump can do whatever he likes with his pardon power. But if Congress decides that he has abused that power — or any other — it has absolute authority to impeach him.

    http://www.nationalreview.com/article/449816/donald-trump-pardon-power-congressional-impeachment?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202017-07-25&utm_term=NR5PM%20Actives

  3. Still, to recap, the Democratic Party proposed legislation that would have empowered the Trump administration to put any citizen it deemed suspicious into a government database for any reason it chose and treat them as a suspected terrorist. And it was the Democratic Party that empowered the Trump administration to deny these citizens an individual right explicitly guaranteed by the Constitution and upheld by the Supreme Court.

    http://thefederalist.com/2017/07/25/democrats-continue-insist-fine-find-people-guilty-proving/?utm_source=The+Federalist+List&utm_campaign=0c0429ca74-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-0c0429ca74-79248369

    The weaponizing of the administrative state puts everyone in jeopardy. Well, actually only those in the crosshairs of the various agencies. Conservatives want to end this abuse of government and secure the rights of all. Progressives on the other hand built this massive bureaucratic state. They know they can never allow those weapons to get in the hands of their enemies, namely progressives of the other party.

    Along comes Donald Trump. He is a direct threat to progressives of both parties. He’s not interested in keeping this Frankenstein of a government. He doesn’t need to enrich himself off of government corruption. He’s already wealthy and he did it the private party way; by (at worst) crony capitalism. Now he’s got a following that wants this thing dismantled so that it can no longer threaten the average citizen. And of course for progressives that means the sleeping giant has been awoken. Elections do have consequences.

  4. Mueller must be slapped with an injunction.

    Mueller must be brought before the Public Integrity Section – Criminal – Department of Justice – Deprivation Of Rights Under Color Of Law, for Prosecuting President Trump with no evidence or probable cause.

    • Mueller hasn’t prosecuted anybody. The whole point of the investigation is to see whether there IS evidence or probable cause.

  5. 65 Million people vote for a President and then everything possible to thwart him by other interests begins January 21. Obama never faced that. Has any other President been given this kind of garbage from day one? Rep. Adam Schiff is in for a tough 2018. And Schumer’s complete lack of respect for the Senate is sickening. He attacked Rand Paul (as the junior Senator from Kentucky). So much for decorum. Apparently unless you vote for a Democrat your vote is meaningless. I believe Trump is there because of Ocare. How else could that have even been considered?

    • Schiff won with 78 percent of the vote in 2016. Do you really think Trump is making in roads in Los Angeles County?

      • Everywhere where people feel they have been forgotten, yes. And LA folk have been for sure. Did Republicans have a viable challenger? I think they will in 2018.

      • Did you say, “Lost Angeles County?”
        _________________________________________________________________________________

        “he composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

        – Alexander Hamilton
        _________________________________________________________________________________

        Schiff and Los Angeles County are absolute proof that you can commit election fraud and manipulation using artificial invasion/immigration. Disgusted Americans moved out of L.A. County a long time ago.

        I wonder if North Korea would invite a mass of unassimilable, incongruous, incompatible illegal immigrants into a county and allow those criminal invaders to vote.

        Anti-American-sovereignty, redistributionist globalists have dumped huge segments of discordant foreign parasites on the country in order to “fundamentally transform” Americans into extinction.

        Presumably, President Trump will address deleterious invasion/immigration in the near future.

        Thomas Jefferson –

        “Suppose 20 millions of republican Americans thrown all of a sudden into France, what would be the condition of that kingdom?” “If it would be more turbulent, less happy, less strong, we may believe that the addition of half a million of foreigners to our present numbers would produce a similar effect here.”

        Alexander Hamilton –

        Hamilton was likewise unconvinced that diversity was a strength. The safety of a republic, according to him, depended “essentially on the energy of a common national sentiment, on a uniformity of principles and habits, on the exemption of the citizens from foreign bias and prejudice, and on that love of country which will almost invariably be found to be closely connected with birth, education and family.”

        “The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

    • Sandi

      Obama was an intelligent President without the psychological imbalance of Trump. Trump is simply mentally unbalanced and not fit to be President. Regardless of which side one finds oneself supporting, regardless of any transgressions either one may or may not have committed, regardless of all else, Trump is mentally unbalanced and Obama was not, and probably is still not. Review Trump’s actions and see how far back you have to go before this becomes apparent. For any level headed person, the Boy Scout issue should be far enough. Trump is sick.

      • Obama was a puppet. You have no idea his level of intelligence. Have you heard him speak off teleprompter? Uh, ah, um…..he’s no great communicator either.

      • Obama wouldn’t accept the invitations to speak at the Boy Scouts and at the DNC they booed the Boy Scouts. Democrats haven’t liked the Boy Scouts in a long time.

        Obama in 2009 had grade school children singing his praises while he was there.

  6. Wow! Hugh breaking News about the Traitors, aka HRC,DNC, Obama.

    Infowars:

    DC journalist Lee Stranahan reveals the group behind the Trump witch hunt. Tune in!

  7. Read all about this disgusting piece of sh*t President we are saddled with, how he blathers his vitriol to the Boy Scouts. Now, is the time for impeachment or pardon as long as he hits the road.

    Now, all you Trump supporters, defend this. I am really interested in how ridiculous the comments will be responding to this latest disgusting display of mindless megalomania. Trump Youth, Hitler Youth, not much difference.

  8. There are plenty of tools at Trump’s disposal he could us to cut through all this treasonous crap by the Demos/Rinos & the Media.

    One would be for him to release today the private videos that the FBI confiscated around Sept 11, 2001 showing what struck the Pentagon on that day.

    If the videos show that it was a missile, like many believe it was, then this whole can of worms, aka Traitors to the USA, are all exposed.

    • So as a 9/11 conspiratorialist, a Birther, a Fake news freak, and someone who thinks HRC and Obama are traitors can I ask you a serious question?

      What attracted you to Turley? Seriously?

      • He’s one of the best Constitutional legal minds I know.

        BTW: You make all these BS claims I see here that fall flat on their face when one looks at the facts.

        • You do know Turley would reject every word your write as imbalanced, unsupportable, and paranoid, right? He would. He’d be fired if he publicly supported anything you write, especially about 9/11. Turley would be fired: FACT.

          As for my BS. — No one on this site has been able to repudiate any argument I’ve ever made. No one. So they resort to insults or blanket critiques with no specific identification of the flaws of my argument. Just like you do here.

          You seem reachable though, so I urge you to go to college and use your obvious intellect to pursue a reasonable education that will free you from the mindless brainwashing of far-right wing conspiracy theories that are damaging and unhealthy to you.

  9. Another email asks if DNC staffers ‘want to offer Jake Tapper questions to ask us’ during another interview on the network. Tapper, who is a journalist for CNN, relentlessly pounded Trump with hard-hitting question throughout the election. It’s now clear where he obtained his information from, who he was working for, and why he was doing it.

    When a news outlet works hand-in-hand with a political party in hopes of influencing election results, that is the sign of democracy being replace with fascism. However, despite this overwhelming amount of evidence packed against CNN and the DNC, they both continue to mercilessly attack President Trump on what they call colluding with Russia during the campaign, of course, without a single iota of evidence. What there is evidence of is collusion between an American news outlet and a political party, and that’s fascism. Yet will CNN spend 90 percent of it’s air time reporting on an actual collusion? So far, they haven’t spent a single second.

    A Separate DNC email chain found appears to show Washington Post columnist Dana Milbank asking the DNC for help with research for a column The column he wrote was about Trump and featured a list of things the presidential candidate said that he deemed as ‘outrageous’.

    ‘Wolf Blitzer is interviewing Trump on Tues (sic) ahead of his foreign policy address on Wed,’ DNC research director Lauren Dillon wrote in the email that was entitled ‘CNN questions for Trump.’ Numerous questions were submitted by a group of DNC staffers and officials for Blitzer to ask Trump.

    https://archive.is/X7nt2

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