Pardon, the Interruption

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Late yesterday afternoon, soon-to-be ex-President-Trump announced a rash of new presidential pardons, fifteen in all, for a rogues’ gallery of miscreants, war criminals and corrupt public servants. As a group, they are believed to be only the first in a series of pardons yet to be handed down before Trump’s departure (one way or the other) at 12:01 p.m. on January 20, 2021.

Now that the long-anticipated, stomach-churning pardon spree has begun in earnest, the national conversation has returned to the pardon power granted to U.S. presidents by our Constitution. This is a subject we revisit every four years or eight years, in the twilight hours of each successive president’s term in office, but the dialogue has never been more vital than now. Just as he has done with every democratic norm that would deign to constrain his natural authoritarian impulses over the past five years, Trump has and will continue to warp the pardon power beyond the Framers’ imagination.

Each pardon in this latest tranche is as vile, outrageously undeserved and amoral as had been widely anticipated. Nonetheless, these pardons are procedurally closer to the generally understood role of pardons than others rumored to be under consideration. Each pardon in this batch served to reverse or clear existing convictions of the pardoned individuals. Of course, they were each in turn devoid of any of the traditional justifications for the award of a pardon (e.g., mercy, clemency or the righting of some injustice), but they hewed close to the procedural norm of addressing convictions. In the days ahead, they may not all look so… traditional.

There are more “creative” applications of pardons currently being discussed, however. This first batch may not have push the envelope much, but there’s still 28 days left. Absent some form of legal challenge, they’ll all stand, regardless of their legitimacy or lack thereof, so I’ll be watching to see how aggressively the future DOJ will challenge the more legally dubious ones.

The most prominent example of a creative expansion of the pardon power is the most famous pardon of the last 100 years: President Ford’s pardon of ex-President Nixon. I dub it a “creative” use because, when Ford pardoned Nixon, Nixon had not even been charged with any crime, let alone convicted of anything.

I think we only assume Ford’s pardon was a legitimate exercise of the pardon power because the nation simply decided it was, not from any particular precedent or constitutional analysis. Ford pardoned him and we collectively shrugged and closed the book on the matter. The pardon may have been controversial in its day, but the nation moved on, and that was that.

That is not how the constitutionality of presidential actions are determined, however. Given that the pardon was, as far as I know, never challenged in court, it remains unknown to this day whether or not that was a proper exercise of the presidential pardon power.

Creative/Exotic Pardons

The primary “creative” uses of the pardon power are (loosely phrased): Pre-emptive Pardons (both Prospective and Anticipatory), and Self-Pardons. Trump is expected to attempt to employ all three exotic variants before he leaves office, but all three types are garbage, IMO. Trump may well attempt to push the envelope, but he should not be allowed to get away with any of them.

In my opinion, none of the creative-use pardons are legitimate. The only way we’ll know whether or not they’re legitimate, however, is if they’re challenged in court. Otherwise, they will be allowed to stand much as was the Ford/Nixon pardon, and the pardon power will thus be dangerously warped thereafter into a corrupt caricature of the original concept.

Self-Pardons? Hell no. This kind is the least plausible of the exotics. How does one grant something to oneself, anyway? The two pre-emptive varieties fair no better, though. Prospective Pardons (for future conduct)? Also hell no. That’s a carte blanche for crime, and deeply, inherently corrupt. How about Anticipatory Pardons (for uncharged past conduct, e.g., the Ford/Nixon pardon)? Still no, for much the same reason. Such use of the pardon power would be a license to engage in criminal conduct for the unscrupulous.

Eliminating these variants would address concerns about ongoing criminal enterprises run out of the Oval, a prospect Trump has renewed and wildly expanded since the days of Tricky Dick. The pardon power simply cannot equate with carte blanche for POTUS and his cronies to do crimes. Consider the cycle that would create: Do crime to get elected, crime away while in office, pardon crimes. No. These abuses of the pardon power are diametrically incompatible with democratic governance and can not be tolerated.

Plenary Power, Constitutional Amendments, and Defining “Pardon”

The President… shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Case of Impeachment.” — U.S. Const. Art. II § 2 Subdiv. [1].

The uphill task presented by these distortions of the pardon power arises out of the fact that the pardon power in the Constitution is considered plenary, or absolute, and a Constitutionally-granted absolute power is nearly unassailable, shy of enacting an Constitutional Amendment. The key to unlocking this conundrum is to focus on the definition of pardon.

The Constitution is notoriously spartan in its use of explanatory definitions of terms. Indeed, the Framers did not include a glossary. This leaves open, however, the (at least theoretical) possibility that a court could limit the definition of the word “pardon,” which I argue can be used to solve the exotic pardon peril. Constitutional interpretation is the stuff our federal courts live for, particularly the Supreme Court. A court could interpret the definition of pardon so as to exclude the exotic varieties (e.g., determine that a so-called self-pardon is not an actual pardon at all).

In this way, by focusing on the definition of the term, the plenary power of the pardon remains absolute (and thus, constitutional). Consider that while the pardon power is widely considered plenary, it’s not a truly absolute power. For example, a president cannot use the pardon power to write legislation or impose ex post facto punishments. The absoluteness of the pardon power is nonetheless constrained by the definition of a pardon itself, of what the act of pardoning someone means.

Where I believe the pardon power is truly plenary is in the granting of it. Once a (legitimate) pardon is granted, it is understood that it cannot be undone, by neither court nor Congress. Indeed, though it has been theorized that the grant of a pardon for corrupt purposes could give rise to new criminal or impeachment-related charges, the pardon itself is understood to remain valid once granted. No take backs.

This interpretation leaves open the possibility of our limiting the pardon power without embarking on the arduous and time-consuming task of amending the Constitution. The pardon power is plenary, but what constitutes a pardon is limited by the boundaries of the definition of “pardon.”

To that end, I’d argue that, by definition, the pardon power should be exclusively reserved for reversing convictions or similar adjudications. Each of the exotic, expansive notions of pardon will open wide the door to corrupt abuse of the power. By tethering the definition of pardon to the notion of a conviction, the door to corrupt abuse can remain largely shuttered. With the exception of crimes with very short statutes of limitation, prosecutors can simply wait until the corrupt POTUS leaves office before bringing charges and seeking a conviction against the would-be pardon recipient. Say buh-bye to anticipatory and proscriptive pardons as fundamentally (definitionally) illegitimate, i.e., not pardons.

Because no President before Trump has been so crass and anti-democratic as to try even a fraction of the corrupt garbage Trump has, none of these questions have been tested much (or at all) in the courts. In corruptly wielding the pardon power as he has already done (see Stone, Roger) and is anticipated to continue to do, Trump is taking us (again) into uncharted legal waters.

Framed more positively, there are sound legal arguments waiting to be made in response to the corrupt actions of this lame-duck president. Since a Constitutional Amendment in today’s political environment is either a pipe dream or a long slog with low odds of success, we can yet still impose sane limits upon the pardon power by challenging the definition of pardon in court.

It has been widely reported that Trump is actively contemplating all manner of “creative” pardons in his final weeks in office, including possibly attempting a self-pardon. We won’t know until he tries, but in the meantime, I hope career prosecutors at the DOJ are ready to fight like hell in court to prevent such a dubious expansion of the pardon power.

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