What should Paul Manafort, President Trump’s former campaign manager, do? Robert Mueller is reportedly bearing down on him, threatening prosecution, unless Manafort spills the beans on Trump. Should Manafort relent, or should he hold out in the hope of receiving a presidential pardon? Manafort might be heartened somewhat by Trump’s recent pardon of Sheriff Joseph Arpaio. Trump seems to be saying, “Don’t give in, Paul. I protect my friends if they stay loyal to me.” Should he listen?
Here is some unsolicited advice for Manafort: Don’t put much weight in Trump’s implicit promise of a pardon. I say this not because I believe Trump will ultimately refuse to offer him one. Who knows what Trump will do? I say this because any pardon Trump issues will provide little protection from criminal prosecution, either at the state or the federal level.
{mosads}Manafort himself surely knows that a pardon offers no protection from state prosecution. The Constitution clearly provides that presidential pardons apply only to federal crimes, not state ones. But Manafort might at least hope that the pardon will shield him from federal convictions. Don’t count on it. Although it is not widely recognized, constitutional constraints on the president’s authority mean that any pardon Manafort is likely to receive would almost assuredly not survive federal court review.
That might sound surprising given the expansive language of the Constitution. Article II provides that “the president … shall have power to grant … pardons for offenses against the United States … except in cases of impeachment.” The language seems to suggest that the president can pardon anyone of any federal crime, at least if the pardon does not occur during the impeachment process itself. Based on the text, some commentators refer to the president’s pardon power as “unlimited” in federal cases.
The truth, however, is less impressive. The Supreme Court has repeatedly stated that the Framers intended to incorporate limitations on the pardon power that existed in British law, or common law, when the Constitution was drafted. That actually explains why the Framers included an exception for pardons during impeachment. The Framers understood that the only exceptions that needed to be explicitly stated were those that could not be found in historical practice. Since common law permitted pardons at certain stages in the impeachment process, the Framers had to be clear that our Constitution did not.
So what common law restrictions might interfere with Trump’s ability to pardon Manafort? The most significant is a common law rule requiring pardons to specify the offenses that are absolved. As William Blackstone, the leading authority on common law, wrote, “General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction. The conviction … must be particularly mentioned.” The Framers implicitly incorporated that specificity requirement into the Constitution.
This limitation, needless to say, finds additional support in constitutional principle. A core goal of the Constitution, after all, has been to check executive abuse. The expansive and largely unreviewable power of the pardon is an anomaly of sorts in our system, and it generates just such a risk of abuse. A specificity requirement thus becomes the only real check on executive overreaching, allowing the public to respond to corrupt pardons through the political process, either through ordinary elections or the ultimate power of impeachment.
This kind of a specificity requirement severely hampers Trump’s ability to pardon Manafort — or, for that matter, Michael Flynn or Jared Kushner. Trump certainly couldn’t list the specific crimes committed by each, especially if those included collusion with Russia or other campaign improprieties. That would be political suicide. Rather, Trump would have to issue a vague pardon covering any and all crimes committed during the past year, if not significantly longer. The model might be President Ford’s pardon of Richard Nixon, which absolved Nixon of “all offenses against the United States which [he] has committed” during his tenure in office.
That kind of a pardon is likely to be challenged in federal court, and the challenge will have a reasonable chance of success. Manafort might try to cite Ford’s pardon in defense of his own reprieve. But that example is no precedent, for the simple reason that the validity of Ford’s pardon was never litigated in the Supreme Court. Leon Jaworski, the Watergate special prosecutor, refused to contest the pardon, and the case against Nixon was dropped. Trump might hope for the same lenient treatment from Mueller, but that would be a risky bet. In the end, Manafort might find himself empty handed, facing federal prosecutors without a shield.
To be sure, any attempt to predict how the federal courts will rule in a pardon case is fraught with uncertainty, given the limited precedents in the area. But the common assumption that a pardon will insulate Manafort from federal prosecution is overstated, and likely incorrect. If Trump issues a vague pardon without specifying the crimes covered, Manafort will rely on that pardon at his peril.
Aaron Rappaport is a professor of law at the Hastings College of the Law and co-director of the Hastings Institute of Criminal Justice at the University of California in San Francisco.
The views expressed by contributors are their own and are not the views of The Hill.