The Pardon Power is a Bug, Not a Feature
by Michael Dorf
When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump.
Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican with a reputation for integrity as a Democratic hack bespeaks at least the possibility of a backup plan in which Trump either fires Mueller (perhaps by first firing Jeff Sessions, then firing Rod Rosenstein, and then naming an acting Attorney General to do the deed) or promises Manafort and others in Mueller's cross-hairs pardons if they don't snitch.
Only the fear of political blowback stands in the way of Trump firing Mueller, but it didn't have to be that way. Had Congress not allowed the independent counsel provision upheld in 1988 in Morrison v. Olson to sunset in the wake of Kenneth Starr's pursuit of Bill Clinton, we would have on the books protections for the special prosecutor against being fired by the president based on the latter's simple unhappiness with the direction of an investigation.
But the pardon power appears to be something different entirely. Even if we still had a law insulating the independent counsel against being fired by the president, the pardon power would be available as a means of frustrating an investigation. And that is a bug, not a feature, of our Constitution.
In saying that, I do not mean to imply that the pardon power is unlimited. In my view: (1) A president can pardon anyone for a federal crime; (2) except that he probably cannot pardon himself; and (3) even if a pardon is valid, the granting of that pardon in a corrupt bargain can itself be the basis for a finding of criminal conduct. E.g., if the president issues a pardon in exchange for a bribe, the pardon is valid, but the president could be impeached and removed for bribery, and once removed, could be prosecuted for accepting the bribe.
At least that was my view before contemplating what Bob Corker accurately called the debasement of the presidency by its current occupant. Perhaps Trump will surprise me and simply huff and puff about Mueller but not actually try to interfere with his investigation. However, should Trump use the pardon power to shield himself, I would want to re-examine proposition (1).
Let me make that more concrete. Under my current view (which I think reflects the rough consensus among constitutional scholars), Trump could issue full pardons today for Manafort, Gates, and Papadopoulos. Presumably the fear of political backlash currently deters him from doing so. But if that is all that is stopping the president, the brake is contingent. At some point the fear of what the indictees will say to incriminate Trump could become so great that it would outweigh the risk of political repercussions. At that point, we could expect to see a game of whack-a-mole between Mueller and Trump. Mueller obtains a grand jury indictment against Manafort; Trump pardons Manafort. Mueller obtains a grand jury indictment against Mike Flynn; Trump pardons Flynn. Lather, rinse, repeat.
Would that look bad for Trump? Sure, but on the hypothesis that there really is dirt to be dished, I am assuming that the dirt would look worse than the series of pardons. And remember, the pardons would be publicly justified as aiming to stop a politically motivated witch hunt--a position that the Trump-friendly media would eagerly parrot. Indeed, they are already doing just that, with the Wall Street Journal calling for Mueller to step aside so that an unbiased prosecutor can investigate . . . wait for it . . . wait for it . . . Hillary Clinton.
Even with historically low levels of support, Trump might have enough support in the House and Senate to avoid paying a political price for pardoning his way out of an investigation. And remember, if successful, the pardon gambit would prevent the coming to light of the one thing that could potentially turn tremulous Republicans against Trump: a smoking gun proving that Trump knowingly colluded with a hostile foreign power to influence a US presidential election.
Put differently, the pardon power is a kind of booby trap that threatens to explode our system of constitutional accountability. It hasn't done so yet because, for all their flaws, the first 44 presidents of the United States regarded the pardon power as a means to temper justice with mercy and, occasionally, as a means of helping the country move past painful divisions (as when Carter pardoned draft evaders and Ford pardoned Nixon). We have not previously had a president who regarded the pardon power as a means of avoiding responsibility for his own malfeasance.
Perhaps we don't now either, but given Donald Trump's willingness to break all sorts of other norms and the reluctance of anyone in his own party planning to stand for re-election to stand up to him, it would be foolish to think that the pardon power is off limits. In the event that Trump attempts to circumvent Mueller's investigation via pardons, the conventional wisdom should yield to judicially enforceable limits on the use of the pardon power. As Prof. Buchanan has argued, the sparse text and almost equally sparse case law on the scope of the pardon power would not be offended by a ruling to the effect that pardons issued with the clear purpose and effect of obstructing justice are invalid.
To be sure, skeptics of judicial power like to note that courts cannot save a democracy intent on committing suicide. I agree with that general attitude: courts are not a panacea. But that is not to say that courts can do nothing. Donald Trump is president because he just barely scraped together a close enough second-place showing to win the Electoral College. The survival--or demise--of democracy could be the result of an equally close decision. Ideally, that decision would be made by courageous Republicans in the House and Senate following in the path of their predecessors during Watergate. But if the courts need to re-construe the pardon power to get that result, so be it.
When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump.
Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican with a reputation for integrity as a Democratic hack bespeaks at least the possibility of a backup plan in which Trump either fires Mueller (perhaps by first firing Jeff Sessions, then firing Rod Rosenstein, and then naming an acting Attorney General to do the deed) or promises Manafort and others in Mueller's cross-hairs pardons if they don't snitch.
Only the fear of political blowback stands in the way of Trump firing Mueller, but it didn't have to be that way. Had Congress not allowed the independent counsel provision upheld in 1988 in Morrison v. Olson to sunset in the wake of Kenneth Starr's pursuit of Bill Clinton, we would have on the books protections for the special prosecutor against being fired by the president based on the latter's simple unhappiness with the direction of an investigation.
But the pardon power appears to be something different entirely. Even if we still had a law insulating the independent counsel against being fired by the president, the pardon power would be available as a means of frustrating an investigation. And that is a bug, not a feature, of our Constitution.
In saying that, I do not mean to imply that the pardon power is unlimited. In my view: (1) A president can pardon anyone for a federal crime; (2) except that he probably cannot pardon himself; and (3) even if a pardon is valid, the granting of that pardon in a corrupt bargain can itself be the basis for a finding of criminal conduct. E.g., if the president issues a pardon in exchange for a bribe, the pardon is valid, but the president could be impeached and removed for bribery, and once removed, could be prosecuted for accepting the bribe.
At least that was my view before contemplating what Bob Corker accurately called the debasement of the presidency by its current occupant. Perhaps Trump will surprise me and simply huff and puff about Mueller but not actually try to interfere with his investigation. However, should Trump use the pardon power to shield himself, I would want to re-examine proposition (1).
Let me make that more concrete. Under my current view (which I think reflects the rough consensus among constitutional scholars), Trump could issue full pardons today for Manafort, Gates, and Papadopoulos. Presumably the fear of political backlash currently deters him from doing so. But if that is all that is stopping the president, the brake is contingent. At some point the fear of what the indictees will say to incriminate Trump could become so great that it would outweigh the risk of political repercussions. At that point, we could expect to see a game of whack-a-mole between Mueller and Trump. Mueller obtains a grand jury indictment against Manafort; Trump pardons Manafort. Mueller obtains a grand jury indictment against Mike Flynn; Trump pardons Flynn. Lather, rinse, repeat.
Would that look bad for Trump? Sure, but on the hypothesis that there really is dirt to be dished, I am assuming that the dirt would look worse than the series of pardons. And remember, the pardons would be publicly justified as aiming to stop a politically motivated witch hunt--a position that the Trump-friendly media would eagerly parrot. Indeed, they are already doing just that, with the Wall Street Journal calling for Mueller to step aside so that an unbiased prosecutor can investigate . . . wait for it . . . wait for it . . . Hillary Clinton.
Even with historically low levels of support, Trump might have enough support in the House and Senate to avoid paying a political price for pardoning his way out of an investigation. And remember, if successful, the pardon gambit would prevent the coming to light of the one thing that could potentially turn tremulous Republicans against Trump: a smoking gun proving that Trump knowingly colluded with a hostile foreign power to influence a US presidential election.
Put differently, the pardon power is a kind of booby trap that threatens to explode our system of constitutional accountability. It hasn't done so yet because, for all their flaws, the first 44 presidents of the United States regarded the pardon power as a means to temper justice with mercy and, occasionally, as a means of helping the country move past painful divisions (as when Carter pardoned draft evaders and Ford pardoned Nixon). We have not previously had a president who regarded the pardon power as a means of avoiding responsibility for his own malfeasance.
Perhaps we don't now either, but given Donald Trump's willingness to break all sorts of other norms and the reluctance of anyone in his own party planning to stand for re-election to stand up to him, it would be foolish to think that the pardon power is off limits. In the event that Trump attempts to circumvent Mueller's investigation via pardons, the conventional wisdom should yield to judicially enforceable limits on the use of the pardon power. As Prof. Buchanan has argued, the sparse text and almost equally sparse case law on the scope of the pardon power would not be offended by a ruling to the effect that pardons issued with the clear purpose and effect of obstructing justice are invalid.
To be sure, skeptics of judicial power like to note that courts cannot save a democracy intent on committing suicide. I agree with that general attitude: courts are not a panacea. But that is not to say that courts can do nothing. Donald Trump is president because he just barely scraped together a close enough second-place showing to win the Electoral College. The survival--or demise--of democracy could be the result of an equally close decision. Ideally, that decision would be made by courageous Republicans in the House and Senate following in the path of their predecessors during Watergate. But if the courts need to re-construe the pardon power to get that result, so be it.