The news has been full of reports that Trump and his legal team are exploring the extent of his pardon power, including whether he can pardon himself.
Trump seemed to verify the reports by tweeting that he can pardon family, associates, and even himself. Journalists and commentators have been particularly distracted by debate over the accuracy of Trump’s claim that he can pardon himself. Constitutional scholars have weighed in on both sides. But, the self-pardon issue pales in importance next to the president’s threat to use his indisputably broad power to pardon others, a power that, unlike the self-pardon power, could impede the Russia investigations.
It is disconcerting that we are discussing pardons at this early stage. The president’s mention of pardons – along with his efforts to lay the groundwork for firing Independent Counsel Mueller — is the latest confirmation that he feels the investigation closing in on damaging material. Recently, Trump seemed surprised that Mueller would have access to his tax returns and would examine his past financial dealings. He warned Mueller not to cross a red line into his business past.
Trump’s early focus on his pardon power suggests that he sees pardons as a means of curtailing the investigation. If so, we could see Trump, in short order, drive Sessions out of office, fire Mueller, and issue pardons.
The president’s pardon power is broad, but it is silent on the self-pardon issue. Because no president has ever pardoned himself, a court has never opined on the power to do so. While the better view is that Trump cannot pardon himself, the issue is unlikely ever to need to be resolved. Article II, Section 2 of the Constitution gives the president power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” While the section grants the president broad power, it imposes two explicit limitations: presidential pardons extend only to federal crimes and they cannot affect impeachment. Some have argued that the absence of further textual limitations means there are none, while others have argued – I think more persuasively – that self-pardons are inconsistent with two fundamental maxims of our law: that all people, including government officials are subject to the rule of law and no person should be the judge in his or her own case.
One reason self-pardons have seemed unnecessary is that we have long prided ourselves on rising above banana republic politics, which make it routine for incoming leaders to prosecute their predecessors. Another reason is that the Department of Justice has taken the position that a sitting president cannot be prosecuted. Staffs of the independent counsels in both the Watergate and Clinton investigations produced internal memoranda concluding that a sitting president could be prosecuted, though neither Nixon nor Clinton was. The Department of Justice’s Office of Legal Counsel, however, has twice opined that a sitting president cannot be prosecuted. Mueller is unlikely to defy that conclusion, even as scholars debate the issue. The reality is that Mueller does not operate with the same degree of independence exercised by the Watergate and Clinton counsels. The DOJ regulations pursuant to which he was appointed give the Attorney General (in this matter, the Deputy Attorney General) authority to overrule important decisions. He, therefore, most likely lacks discretion to disregard OLC’s position.
The most significant impact of a self-pardon would be political, not legal. It should ignite a public outcry that even Republicans in Congress – determined as they are to prop up Trump until he can sign tax cuts and complete his rampage of deregulation — could not ignore. Trump should recognize that he has little to gain and much to lose by pardoning himself.
Pardons of Trump family and associates will not make the investigation go away, but they may make it more difficult. Deputy Attorney General Rosenstein’s charge to Mueller authorizes him to investigate links and coordination between the Trump campaign and Russia and any matters that arise from the investigation. Until the investigation is complete, investigators will not know the full slate of potential subjects. A series of individual pardons will not stop it.
Pardons could help Trump by reducing Mueller’s ability to obtain cooperation from key players. As the evidence of crimes mounts against Michael Flynn and Paul Manafort, for example, the prospect of jail time may become a strong incentive to help investigators. Mueller would lose the ability to dangle immunity or a favorable plea deal in exchange for testimony. Family members, of course, would be less likely to flip.
Some have suggested that pardons would hurt Trump by stripping recipients of their ability to assert the Fifth Amendment in refusing to answer questions. But recipients of federal pardons can still decline to make statements that might expose them to state criminal prosecution. Certainly, many of the activities of Manafort, Donald Trump, Jr., Kushner, and others may run afoul of state law, including campaign finance restrictions, and a range of laws governing financial transactions. That exposure would justify silence.
Trump must also consider that pardons granted for the purpose of impeding the investigation will contribute to the evidence supporting impeachment for obstructing justice. While the president has broad power to issue pardons, he cannot do so for a corrupt reason, such as in exchange for a bribe, or to block an investigation into his own conduct.
Pardons often provoke controversy. Gerald Ford assured his electoral defeat by pardoning Nixon and Bill Clinton endured a firestorm of criticism for his unjustified pardons of his brother and fugitive financier Marc Rich. The response to Trump’s effort to curtail the Russia investigation through pardons should be so crippling as to outweigh any benefit he might derive.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.