by Neil H. Buchanan
Adding to the list of things that ought to have been unnecessary to write, I recently offered this observation: "The Constitution is not a stupid document written by careless men." Donald Trump's assaults on our system of government have been so fundamental that even the most crushingly obvious truths need to be revisited.
The point of that particular observation was to respond to people -- even many of Trump's fiercest detractors -- who have been saying that the president's pardon power is absolute and unreviewable. If those people were right, then the Constitution would be not merely a suicide pact but a self-negating exercise, a piece of paper that created a limited government in name but a dictatorship in fact.
Even in the context of constructing a strong argument against the Arpaio pardon, for example, Professor Martin Redish recently claimed that "on its face the pardon power appears virtually unlimited." This, fortunately, is wrong on its face -- and although I have never met Professor Redish, the rest of his argument makes me suspect that he would be happy to be wrong in this instance.
The relevant language from the Constitution is this: "The President ... shall have Power to grant Reprieves and Pardons ... ." The only way that the pardon power would appear to be unlimited "on its face" is if one believes that "shall have power" unambiguously means "shall have complete and unreviewable power." But it does not say that (nor does it definitively say anything else).
Because the pardon clause does not say that the president's power is unlimited, and because the word pardon is itself not self-defining (Does it include only acts of mercy?), it should very much be within the courts' purview -- as it is in all constitutional questions -- to hear and adjudicate challenges to the president's pardon power, from the Arpaio pardon to possible future pardons of Trump's family members and his other enablers.
Indeed, just as I had hoped, some people have already started to mobilize against Trump's unprecedented power grab. The Washington Post's Jennifer Rubin, for example, wrote a column yesterday with the sub-headline, "Trump's pardon power may not be so absolute after all."
The top of that column provides a video link overwritten with these words, attributed to a different Post writer: "Trump's pardon of Arpaio is morally empty. And totally legal." Strongly and appropriately disagreeing with the latter assessment, Rubin highlights a report from Arizona that the judge in Arpaio's case is asking for briefing on whether she must dismiss the case in light of the pardon.
In other words, there is nothing automatic about this, and the judge is not simply going to say, "Nothing I can do." Rubin reports on efforts by two groups, "Protect Democracy" and "Free Speech for People," who are pushing in various ways to challenge Trump's pardon power, not just in the Arpaio context but in the broader senses that I described in my recent column.
To repeat myself once again, an absolute and unreviewable presidential pardon power could only have been written into the Constitution if its authors were careless men who were willing to produce a stupid document. No system that purports to maintain co-equal branches of government that wield separate powers could survive a president with complete pardon power.
In my column, after I noted the inherent ambiguity in the text of the pardon clause, I briefly sketched out two types of arguments that point to limitations on the pardon power. First, I made what amounted to a very simple originalist argument, suggesting that the Federalist Papers recognized limits on the pardon power. Second, I noted that the relevant Supreme Court precedent also suggested limits to the pardon power.
Those are both fine methods of interpreting the Constitution, and they happen to reach the same conclusion as a more modern approach to constitutional interpretation. Even so, it is important to be clear that we need not be tied to what Alexander Hamilton wrote, no matter how popular his Broadway musical might be.
That is, even if an originalist approach could somehow demonstrate that the Founders really did mean to put no limits on the pardon power, that would not mean that the inquiry was over. For one thing, the Founders did not think that political parties would emerge, and even if they had, they certainly could not have imagined the degree of blind partisan loyalty that Republicans (voters and officeholders) currently display toward Trump.
If one imagined, therefore, that Hamilton and the others relied on the impeachment process to prevent their document from being stupid and self-negating, then one could only reply that the founders' ability to foresee future developments was too limited.
Analogously, there is long-running argument among legal scholars about the meaning of the Commerce Clause, which prevents Congress from passing laws regulating commerce within states. Many scholars have noted, however, that post-agrarian America is so economically intertwined that the category of commerce that is not meaningfully interstate commerce has become effectively the null set.
What to do? We should simply recognize that times and circumstances have changed, and rather than pretending that the words in the original Constitution must still have the same impact that they did in the eighteenth and nineteenth centuries, we can admit that some constitutional provisions have been changed -- even negated -- by subsequent history.
Trump, in other words, does not have limited pardon power merely because Hamilton and others thought that the word "pardon" meant something other than "get-out-of-jail-free cards for a president's cronies, including those who might otherwise incriminate the president" -- although it certainly is impossible to imagine that the founders would have approved of Trump's current and possible future abuses of the pardon power.
Even if the pardon power were originally thought to be unlimited, that would only be because the founders simply could never have imagined the crisis that such unlimited power could one day create. Just as giving someone "unlimited military power" would have meant something different in ancient Athens than it does in current Washington, giving a president unlimited power to pardon would be similarly horrifying under current circumstances.
But let us put all of this aside and ask for a moment what is truly at stake. As I noted above, the broadest concern is for the very survival of the U.S. system of government, because the end result of an open-ended pardon power would amount to unfettered presidential autocracy.
On the other hand, the immediate question is whether the Arpaio pardon will stand, while the completely foreseeable question for the near future is whether Trump will try to pardon his way out of Robert Mueller's investigation of the Trump campaign's corruption and collusion with the Russian government.
Again, the supposed fail-safe in all of this is the power to impeach. Whether offered cynically by Trump supporters who are confident that he will never actually be impeached, or by others who naively say that any presidential abuse of power should ultimately be curbed by the threat of impeachment, it is certainly true that a Congress that was willing to impeach Trump could make all of these arguments moot.
In the end, does it matter whether Trump could be impeached for abusing the pardon power rather than for obstructing justice by firing the FBI director and for conspiring with a hostile foreign power? It does matter, but for a surprising reason that has everything to do with politics and nothing to do with law.
The question looming over the impeachment debate all along has been whether some Republicans will start to defect and vote for impeachment (or, if it reaches the Senate, vote to convict and remove the president). So far, of course, even the president's tut-tutting critics in Congress ("I'm very concerned," "This is not acceptable, and I hope he stops doing it") have said no.
But for those of us who think that Trump should be impeached, the hope has been that enough additional evidence would emerge to snap a sufficient number of Republicans in Congress back to sanity. We are expecting that, once even more damning evidence emerges from the Mueller investigation, the floodgates will open at least enough to leave only a rump of Trump supporters in both houses flailing helplessly.
If that is the scenario, however, then one might expect that an obvious effort by Trump to prevent Mueller from unearthing that damning evidence should also be enough to shake those Republicans loose.
After all, if a Republican would be willing to impeach/convict Trump, but only if Mueller produces a sufficiently strong case, then that same Republican should also say, "Wait a minute, Trump is abusing the pardon power to prevent that damning evidence from emerging. That's impeachable, too!"
But that might not happen. There is the mistaken belief floating around that only criminally-indictable actions by the president are impeachable offenses -- thus Trump's defenders' constant reminders that the president has the legal power to fire the FBI director, so there is nothing to see here. In addition, as noted above, there is the mistaken belief that the president's pardon power is absolute.
Combining those two misconceptions, it is easy to see how an otherwise persuadable Republican could weasel out of a vote against Trump. "Sure, he has preemptively pardoned Kushner, Trump Jr., Manafort, and everyone else, but that's his right under the Constitution. I can't impeach him for that."
This means that it absolutely does matter that the president's pardon power be challenged in the courts. People who believe that the ultimate check on the president is impeachment are acting as if Trump would be equally at risk of impeachment for short-circuiting Mueller's investigation as he would be for anything that Mueller might turn up. But that is almost certainly false.
That is not to say that a pardon-fest would carry no risks for Trump. Maybe a sufficient number of Republicans actually would be shocked into action, saying that Trump would not be abusing the pardon power if he were not guilty. I hope so.
What we have seen thus far, however, is that every Republican in Congress is trying desperately to find an excuse to do nothing about Trump. Some who might not be shamed into action by his abuse of pardons might be willing to respond to Mueller's likely findings.
That makes it essential to keep up the pressure against Trump's abuse of pardons. Not only is Trump's continued occupation of the Oval Office at stake, but the continuation of limited representative government in the United States hangs in the balance. In fact, it is becoming increasingly obvious that those two concerns are one and the same.