Tuesday, October 31, 2017

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.


Joe said...

"But if the courts need to re-construe the pardon power to get that result, so be it."

Not sure how to go about that. One suggestion was that the Arpaio pardon was illegitimate because it interfered with enforcement of due process of law or something along those lines because of the details of the crime in question. Figure we can find a range of arguments of that sort though not really convinced with that one.

The states that put some limits on their governors' pardon power to me very well might be sensible. The Supreme Court repeatedly wants some sort of "limiting principle" to use of a power but the pardon power has little limit other than the results of impeachment being exempt. If desired, e.g., a president can commute the terms of every person in federal prison to time served.

Steve Davis said...

"Put differently, the pardon power is a kind of booby trap that threatens to explode our system of constitutional accountability."

This seems to me to greatly overstate the case. Trump has exercised the pardon power once. His exercise of it was highly questionable, but it did not in any meaningful sense obstruct justice. It was not done, as far as we know, as part of an effort to destroy evidence or lie to investigators or stop an investigation from moving forward. There's no indication that Trump has conspired to use the pardon power in such an effort.

I would worry greatly about the precedent and consequences of placing limits on the president's pardon power. It's easy to imagine that every controversial pardon would then become the subject of a legal challenge. Presidents would be more reluctant to grant pardons, and that could be a bad thing. I don't think it's been demonstrated that any harm has been done to the country as a result of the exercise of the pardon in the last 200 years, and in the absence of that isn't it somewhat foolish to want to place limits on it?

Shag from Brookline said...

Hopefully Mueller will leave no Stone unturned. And Halloween tonight might be a reminder of America's first "Trick AND Tweet President."

I recall past comments on Nixon/Watergate by Trump on how he thought that Nixon failed to take actions to resist the force of Watergate. (I have not as yet made a Google search on this, relying on my memory. And as we all know with aging, the memory is the second thing to go.)

On an earlier thread on this Blog, I made reference to Public Relations and its "Father" Edward Bernays. The Nixon Administration, then in its second term, employed various PR techniques to minimize what became Watergate. Nixon tried the high road, leaving this to surrogates. Eventually the dripping from WaPo, the NYTimes, etc, became a torrent that Republicans in Congress could not ignore.

Trump hasn't completed the first year of his presidency, which he gained first by defeating "the best and the brightest" GOP Establishment candidates for the Republican nomination, and then defeating Clinton in the general election despite the popular vote favoring Clinton. The involvement of Russia in the election process is not denied by Republicans in general. Trump remembers Nixon's failure to stop Watergate from steamrolling. In my view, Trump may very well take some of the steps discussed in Mike's post.

The question is, will Republicans put politics over patriotism and loyalty to our democracy? i'm not so sure. But some involved in the campaign and in the White House might get nervous with the impact upon them personally; and some of them might put patriotism and loyalty to our democracy over personal loyalty to Trump. They should keep in mind how many of Nixon's minions served time.

Michael C. Dorf said...

Steve: As I say in the post, this is a place that Trump might go. I agree that he hasn't yet, although the Arpaio pardon is troubling. My point is that if the scenario I game out were to happen, that would mean that the pardon power would need to be limited. As with so many other things Trump, I hope it doesn't come to that.

Shag from Brookline said...

It has been said that the power to tax is the power to destroy. Prior to Trump's presidency, the unlimited pardon power has not been a significant issue. But the potential use of the pardon by Trump posited might lead to the unlimited power to pardon becoming the power to destroy democracy. Might a narcissist do that?

Joe said...

"not in any meaningful sense obstruct justice"

Trump argued in part that Arpaio was convicted for doing his "job" and that the pardon was warranted because he was wrongly prosecuted. The criminal contempt charge was brought because Arpaio violated a court order regarding civil rights obligations. Trump, the chief prosecutor if you like, said this ws actually "his job."

This might not be obstruction of justice in a technical legal sense but in a wider sense do think there is a meaningful argument there.

John Barron said...

To me, our Republic died the day that Nixon sold us a broken-down old Ford, who promptly dropped his transmission on the rule of law by pardoning Nixon. The Ford Rule holds that all animals are equal, but some animals (e.g., Clarence Thomas) are simply too important to jail.

One can argue--I have heard it on Pravda West--that the persecution of Arpaio was mostly a partisan witch hunt (see e.g., Don Siegelman), and that that would justify the pardon. That is what the pardon was designed to do, and we have invested that discretion in the President. Not knowing the facts (my best recollection was that he defied a court order like an Eric Holder), I take no position on Arpaio, but the system arguably worked, more-or-less.

The sale of pardons (can we say "Marc Rich"?) and use of pardons in frustration of any Mueller-style investigation has the potential to be far more pernicious.

I'm not sold on the (alleged) "collusion" having a material effect on the election--the claim that RT had a significant impact is risible on its face, as they have granted such inherently dangerous RW subversives as Thom Hartmann, Ed Schultz, and Lee Camp their own shows. (Hartmann and Camp might be thorns in the side of our corporatist media, but they aren't shilling for Putin, and they wouldn't reach enough swing voters in any event.) Proof has not been presented that the WL dump wasn't a leak (as opposed to a hack), and the Comey letter appears to have had a measurable impact on the polls.

That having been said, the real bite in this probe appears to surround money-laundering, and as luck would have it, New York has concurrent jurisdiction. Even if Paul Manafort was pardoned this afternoon, he can still be made to sing like Beverly Sills, and there is no pardon in the quiver for state-law crimes. For these reasons, it still appears to be more of a feature than a bug, though the potential for abuse is there.

John Barron said...

"But if the courts need to re-construe the pardon power to get that result, so be it."

What "rule of law"? We don't NEED no steenkin' rule of law! "Law" is whatever a judge finds in his Depends on Thursday; the ends always justify the means. Never mind that such a declaration is by definition ex post facto; this is 'Murrika, and we don't have to care about fundamental fairness.

The Living Constitution doctrine is already far more destructive to the rule of law than the pardon power could ever be.

Shag from Brookline said...

Here's Pat Robertson's advice:

“[Trump] has every right to shut Mueller down and say, ‘You have gone as far as you need to and I have instructed my Justice Department to close you down,’ He can do it, and he can also grant a blanket pardon for everybody involved in everything and say, ‘I pardon them all, case closed, it’s all over’ I think that is what he needs to do. He’s got to shut this thing down, he’s just got to.”

That's what the Framers had in mind, especially when it comes from a man of the cloth.

I wonder how our enemies might react to that MAGA step.

Shag from Brookline said...

This isn't a NYTimes Halloween trick or treat:

John Yoo: Trump Can Pardon Manafort. He Shouldn’t.
By JOHN YOO OCT. 31, 2017

Yoo doesn't think blanket pardons are appropriate. Unlimited pardon power can serve as WMD against democracy.

Joe said...

Chunks of the op-ed makes sense though the partisan aspects, especially toward the end, leave something to be desired. As to the offenses having no connection to the campaign, that is far from clear, especially big picture.

"In the popular mind, pardons imply the commission of a crime; the innocent do not usually seek pardons. A pardon must be accepted; those who do so imply that they committed the acts."

Pardons include those who are wrongly convicted or whose prosecution was otherwise unreasonable for various reasons. Pardons also might be necessary to recover certain civil rights, including to vote or own a firearm.

So, the first case should be taken with a bit of grain of salt. As to the second, my understanding, per language in a 1920s case, a pardon need not be accepted to take effect. A pardon, as the op-ed itself suggests, is not merely an act of grace. It has a public function that allows the executive to pardon an unwilling individual.

David Ricardo said...

Why any discussion of pardons?

Trump has said repeatedly that there is no collusion. Manafort has said that he has nothing to give the SP on the collusion or co-ordination issue with Russia. Manafort's attorney has said the indictments prove there is no collusion issue.

So in the end all that is left is a charge of financial crimes against Manfort independent of the work he did for the campaign, and no reason to pardon him for that. Of course new indictments could be forthcoming, the most likely one, charging Manafort with being the most inept and stupidest of any financial criminal in the history of that crime. Really, the amazing thing is not that he was laundering money, everybody knew that, it that he was so bad at it.

On a serious note can anyone explain why indictments in the tax evasion charges were not forthcoming. That is as open and shut case if ever there was one. Manafort's only defense is that the money that was wired from the Cypress banks to various vendors was not really to pay for goods and service for himself but to launder that money by getting it into U. S. hands. Not sure that is the smartest defense for Manafort but given the near total lack of intelligence displayed by his attorney it may well be forthcoming.

CJColucci said...

I suppose if Trump pardons a bunch of his co-conspirators in advance, they can still be hauled in front of the grand jury as witnesses, and as witnesses who, having been pardoned, can no longer invoke their 5th Amendment privilege, but are subject to perjury prosecutions if they lie.

Joe said...

To toss it out there, in some cases, these people might be indicted for state crimes.

Greg said...

If Trump were to pardon Manafort, wouldn't that then enable the special prosecutor to compel testimony, since 5th amendment protection would no longer apply to the pardoned actions? In theory, couldn't this actually make getting the hypothetical dirt easier?

I realize that, in practice, this would probably take away the best bargaining chip that Mueller has to try and coerce Manafort into providing testimony. It would also be reasonable for both sides to assume that Trump would further pardon Manafort for any contempt of court charge resulting from failing to provide compelled testimony.

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