Pardon power is back in the news. The question-of-the-week is whether President Trump will pre-emptively pardon Paul Manafort and Rick Gates. The pair face multiple criminal charges in connection with Special Counsel Robert Mueller’s investigation of Russia’s interference in the 2016 presidential election. With the threat of jail time constitutionally eviscerated, the theory goes, Manafort and Gates will refuse to cooperate once and for all. The investigation could then be forced to close — ultimately protecting from criminal censure the president himself.
For Trump critics, the specter of a pardon borders on the terrifying — a menace to democracy that could bring the rule of law to its knees. For Trump defenders, the question is only a matter of when. Once he exercises his power, Trump’s fate will reside exclusively in the Republican-led Congress — and politics.
{mosads}Trump can pull the pardon lever, to be sure. But it’s not a foolproof legal maneuver.
If Trump pardons Manafort, lawyers would immediately ask the federal court in D.C. to dismiss the indictment on the theory that it is void as a result of the pardon. Mueller’s team would then oppose the motion on the grounds that the pardon itself was invalid. And Trump would not necessarily prevail.
Even though the pardon power is broadly worded in the Constitution, the president cannot use it in ways that violate other provisions.
The president could not refuse to issue pardons to anyone of, say, Kenyan descent. That would violate the Constitution’s equal protection clause.
He could not obliterate a new criminal law by officially pardoning anyone and everyone who might violate it in the future. That would conflict with Congress’s power to make laws.
Using the pardon power for the sole purpose of insulating high-level government officials from criminal liability involving potential abuses of office, moreover, could arguably violate the take care clause, which mandates that the president “shall” faithfully execute the laws — including criminal ones.
A defrauded bank with standing to challenge a Manafort pardon might argue that Trump abdicated his Article II prerogative by impeding the administration of justice to save himself. Such a pardon could also form a basis for a separate criminal obstruction charge, or for impeachment — which is expressly exempt from the pardon power
A constitutional challenge to a Manafort pardon would require creative lawyering, to be sure. But we live in groundbreaking constitutional times. As a matter of historical precedent — which matters to the Supreme Court in novel situations like this one — Trump is not on unassailable ground.
The pardon power originated in the royal prerogative of English kings to grant clemency as a show of mercy to repentant criminals who commonly faced capital punishment. Kings also widely pardoned homicides as a means of facilitating war during periods of great upheaval. But even back then, the power was not unlimited. In 1673, for example, an English court noted that a king could not grant a pardon to annoy or damage someone else, to relieve someone’s financial obligation to a third party, or to allow people to avoid duties in the public interest.
In all likelihood, Trump’s pardon would be pioneering as a practical matter too. The indictment and papers supporting George Papadapoulos’s guilty plea make clear that many more as-of-yet unnamed players are part of this drama. Any one of them could pose the very threat of presidential liability that a Manafort pardon would be designed to avoid.
Conspicuously missing from the Manafort indictment, moreover, are charges for obstruction of justice or lying to the feds (think Papadapoulos); these additional crimes cannot be ruled out at this relatively early stage of the investigation. A presidential pardon would not protect Manafort from indictment by the New York attorney general, either.
Thus, to get any meaningful traction, a Trump pardon would probably have to be pre-emptive, prospective and non-specific. It might end up going something like this: “I hereby pardon any person who is or could be charged with any crimes resulting from or relating to Special Counsel Mueller’s investigation.”
The closest historical comparison is probably Gerald Ford’s pardon of Richard Nixon for misconduct that led to his impeachment. It too was unprecedented, and staved off criminal prosecution of an impeached president. But unlike the genre of pardon that the current White House could be noodling, Ford’s pardon applied to a single individual. This is how most presidents do it when they leave office. A division of the Department of Justice reviews individual requests for clemency under a list of guidelines aimed at achieving certain goals. Ford’s move was aimed at healing the deep national divisions created by the Watergate scandal.
Trump’s hypothetical pardon could look more like amnesty. To work as intended, it would have to extend to a bunch of people that only the Mueller team could list right now. Its effect would most certainly be to tear the country apart even further — not to steer us toward a desperately needed path to healing.
All told, Trump can try his hand at more pardons, but the power is no magic wand. If a Trump pardon were to reach the Supreme Court, one could imagine a justice posing the following hypothetical: “Suppose a president hires a hit-man to murder his political opponents. Would he have unfettered power under the Constitution to pardon the assassin — and anyone else involved in the plot — in order to avoid being brought to justice himself?”
The likely reality is that the grand jury will continue to do its work, Mr. Trump, and the chips must fall where they will.
Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater investigation and the author of the forthcoming book “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”