Thursday, December 03, 2020

Self-Pardons, Risk Aversion, and Prosecutorial Discretion

by Neil H. Buchanan

It is completely sensible, even urgent, for responsible actors to treat the ongoing Trump-didn't-lose circus not only with contempt but with condescension.  It is essential to reinforce the fact that Joe Biden won the election, that the election in every state was fairly administered, and that all of Trump's remaining legal options are somewhere between frivolous and treasonous.  "Donald Trump, whether he likes it or not, will stop being president on January 20, 2021," is the right thing to say.

That is not the same thing, however, as ignoring the very real dangers that Trump and his supporters are creating and inflaming.  A Trump lawyer says that the former cybersecurity chief "should be drawn and quartered. Taken out at dawn and shot."  Another says that the Republican governor of Georgia should be harassed until he agrees to violate the law and negate Georgia's election results, at which point the governor is supposed to resign, followed by having Trump "lock him up."  Now-pardoned former Army General Michael Flynn calls for "limited martial law to hold new election."  And Trump performs a direct-to-Facebook rant about every grievance under the sun.

Everyone who says, as we must, that these tactics will not work knows that we are deliberately engaging in an exercise in wish fulfillment.  It is admittedly a high-probability wish, but it is even now still not certain that the pressure being applied on a wide range of people will not pay off for Trump.  It is not over until it is over; and because so much of what must happen takes place in steps over the space of many weeks, it is never quite as over as it might appear.  And at best, we are now reduced to hoping that no one will die from Trump-inspired fury and that the seething rage "only" results in scorched-earth political opposition to the Biden/Harris Administration.

Even so, I will allow myself here to be optimistic and imagine that the ongoing attempted coup will fail, that Trump will be out of office soon, and that there are mere constitutional and legal issues that need to be worked through.  (I say "mere" to distinguish those issues from literal life-and-death questions that currently loom over us.)  The most consequential of those questions is what will happen to Trump and his associates regarding their potential criminal liability.  We can start with the issue of presidential pardons.

When Trump began to abuse the pardon power shortly after taking office, in particular his pardon of the racist psychopath Joe Arpaio of Arizona, I wrote a column here on Dorf on Law in which I wondered why people were so resigned to the idea that a president's pardon power is unlimited and unreviewable.  This was and is nonsense, as even the people who make that claim inadvertently admit.
The relevant constitutional text declares that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."  There is no modifier on the word "Power," so some people say that this means that the implied modifier is "absolute."  But why?  Why would a document that is designed to limit and balance power give the executive absolute power to undermine the other branches of government?  Congress has the power "to lay and collect taxes," for example, but the lack of modifier does not mean that there are no limits on that power.

Notably, the people who say that the text is clear somehow think that the pardon power is only for past offenses, even though the text does not say so.  Indeed, given that the term "United States" has at times been viewed not as a proper noun but as an adjective modifying a plural noun -- that is, states that are united -- the text does not unambiguously tell us that the pardon power is only for federal crimes; yet the same people who say that the power is absolute for federal crimes say that it does not apply at all to state crimes.
What about unreviewability?  The Supreme Court once said that the pardon power is not subject to legislative control, but it did not say that it is unreviewable by the courts.

Even more bizarre is the claim that the president can pardon himself.  In 2018, when the idea of self-pardoning first made the rounds, I wrote another column extending my attack on rank literalism to the idea that the president can let himself off the hook.  I then argued that the literalist interpretation collapses on itself by allowing the president to prevent his own impeachment -- the one check remaining on a president -- in an endless cycle of criminality and self-pardoning.

The problem is that, even though most scholars (including those who wrongly think that the pardon power is plenary and final) think that self-pardoning is unconstitutional, this has not been tested in the courts and is not even a unanimous view among top scholars.  For example, part of my 2018 piece was in response to a former federal judge who now teaches at Stanford Law School, who argued in a Washington Post op-ed that "Trump’s not wrong about pardoning himself."
Would the Supreme Court rule that a self-pardon by Trump was out of bounds?  Maybe, but maybe not.  It might rule that a self-pardon would have been unconstitutional if it were clear in advance to everyone that it was unconstitutional, but because the president was not on notice that it was disallowed, his self-pardon would stand because of his reliance interest.  After all, if he had known about this with certainty, he could have altered his behavior and reached the same result (criminal immunity).

How?  As many have recently been pointing out, and as I discussed in that 2018 column, the easy workaround would be for Trump to resign on January 19, with Mike Pence being sworn in as president and then pardoning Trump, at which point Biden would take the oath of office on January 20.  People who are buying Biden 46 merch might want to hold onto those things, because they could become collectors' items after Biden becomes the 47th president.

There are few times when one can be confident that Trump will do the smart thing, but this is a case where his core motivations line up with the smart maybe-legal play.  He does take a lot of risks, and a surprising number of those risks pay off.  Even so, he has been on the losing end of many bets.  Losing a bet on self-pardoning does not have the off-ramp of a bankruptcy filing, so my guess is that he will cover his massive legal exposure by both self-pardoning and then by getting President Pence to pardon him as well.  If that does not happen, he is putting himself at needless risk.

Or is he?  The underlying assumption in all of this is that Trump -- even assuming that he committed crimes that can be proved in court beyond a reasonable doubt (a very safe assumption) -- actually will be prosecuted.  Ari Melber, a Cornell Law graduate who hosts an afternoon show on MSNBC, recently argued quite persuasively that Biden should not even consider committing to a non-prosecution strategy when it comes to Trump and his people.  Yet Melber did not argue that Biden should commit to prosecuting Trump, either.

Melber's point was that there is an important symmetry in the politicization of prosecutorial decisions.  Just as it is wrong for Trump to be threatening to prosecute people for political reasons, so it is wrong for Biden (or anyone else) to promise not to prosecute people for political reasons.  This idea, moreover, is not limited to refusals to prosecute one's political allies, because it is just as corrosive to have a president direct the people's lawyers not to prosecute a political foe for political reasons.  In each case, the wrongdoer is getting special treatment from the president as a matter of political intervention in the criminal justice system.

One might argue that the situation is actually asymmetric, because prosecutorial discretion is about choosing when not to prosecute.  In that view, prosecution is the default whenever a crime has been committed, and a decision not to prosecute is at the discretion of the relevant prosecutors and their superiors.  But that is a rather contrived view of a prosecutor's choices, which involve yes/no decisions that could go either way.  The prosecutor has the discretion to charge or not to charge, and the decision should be free of political taint either way.

I thus agree with Melber that Trump and associates should be prosecuted or not prosecuted based on apolitical considerations.  Indeed, I would add that federal prosecutors who conclude that a prosecution is in order should challenge any pardons that purport to shield Trump or anyone else.  The pardon power is not absolute or unreviewable, and now that it is being abused, it is important to determine its limits through litigation.  (The Pence workaround, by the way, could and should certainly be rejected as a sham.)

Even so, Biden seems to be leaning toward "letting the country move forward," and plenty of people in good faith (and others based on less defensible motives) are saying that the best move is not to prosecute any Trump-related offenses.  That would be a disaster, however, and the best way to handle it would be either to create a special prosecutor or simply to put senior nonpolitical lawyers at Justice in charge of those cases.  In other words, go back to treating criminal law as criminal law, prosecuting cases based on their legal merits.

Surely, however, Trump's defenders would never accept assurances that any prosecutions were not ultimately directed by Biden's political staff, right?  Sure, but who cares?  They are not going to accept anything other than a Biden confession of stealing the election, his resignation, and a perp walk ending with Rudy Giuliani sending Sleepy Joe to a SuperMax prison.
The audience for the depoliticized prosecutions (or choices not to prosecute) is not Trump's enraged base but everyone else.  Skittish Democratic senators who understandably worry about "making politics a crime" need to be assured -- in a way that they can defend on TV and to their voters -- that this has been moved out of the political decision-making realm.  That cannot be done perfectly, but it can be done in a way that is reasonably transparent and that relies on well established firewalls that are used in the law all the time.  When asked to comment on any particular prosecution that might come up, Biden and his people should simply say, "We have no contact with that."

There are no good options here.  Whenever a president commits crimes, the options are all bad.  But giving TrumpWorld a complete pass would set a horrible precedent, and it is possible to convince anyone who has even a slightly open mind that the wheels of justice are not being manipulated by politicians.  It is sad that fewer and fewer people on the right have anything resembling open minds, but they cannot be allowed to exercise a heckler's veto over the neutral administration of the law.


kotodama said...

"giving TrumpWorld a complete pass would set a horrible precedent"

Yup, it sure would, so I agree with all this 99.9%. The 0.1% is just a small quibble with "complete". I'm curious why you felt a need to include that part?

Relatedly, putting aside the wacky (at least until they're enthusiastically endorsed by a 5-4 or 6-3 SCOTUS) arguments about state crimes or future crimes (latter would be great for Minority Report though!), can anyone point to a thoughtful analysis of potential and/or likely actions Trump may be considering w.r.t. his various IRS entanglements? I take it some of them might entail civil, not criminal, penalties, so--at least under the present conventional understanding--those would be unreachable with a (Pence or self-) pardon. Everything I've seen to date seems to focus just on the criminal side of things.

Neil H. Buchanan said...

Good questions/comments, hardreaders!

I didn't mean "complete pass" as opposed to "partial pass." I meant it in the sense of a "big fucking pass" or an unjustified pass. In an episode of "The Handmaid's Tale," Offred exclaims, "What the absolute fuck?!" Sort of like that.

(Good reference to "Minority Report," by the way.)

Good point re the tax questions. I'm embarrassed not to have thought of it, given that my day job is "tax professor." I'll write about all of that soon. Thanks for the idea.

kotodama said...

Thank you, Prof. B.! That parsing of it seems so obvious now that you point it out. Maybe in penance I should temporarily forfeit my handle or revise it to "softreaders"...sigh. At least I didn't take it to mean the opposite of an incomplete pass, although given how my beloved Iggles are doing this season, that was certainly a possibility.

By the way, didn't you get the memo from the previous thread that Handmaid's Tale references are no longer permitted? They seem to hit to close to home with a certain segment of the population.

So, on the IRS angle, I actually recalled coming across a blog post by Jack Townsend from almost a month ago, here. Numbered paragraphs 1 and 3 do in fact discuss possible tax crimes and civil tax penalties, respectively. But as you can see, the focus is mostly on what Biden might do to give Trump the aforementioned "complete pass" (at least on the criminal side). And other than the much-discussed potential self-pardon for tax crimes, it doesn't address whatever Trump might do to sabotage enforcement on the civil side before the credits roll. So I think that topic is still indeed ripe for analysis. Looking forward to another entertaining read!

Bob Moss said...

When construing the Constitution, we must be mindful that it was written and ratified by individuals who had broken from England only 13 years previously, and whose legal system retained English law on all questions not addressed by legislative or constitutional changes from 1776 onward. Thus we must ask, what did "pardon" mean to the framers and ratifiers? Blackstone had a fair amount to say about that. For example, in denying that the law excuses theft on the ground of dire straits, he notes (claims?) that in England,

Charity is reduced to a system, and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the necessitous; especially when we consider, that the king, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship.

IV Commentaries at 32 (1st ed.). We must also note that discretion is never absolute. As
Chief Justice Ryder said when the proprietors of 20 pubs, all of whose licenses had been renewed annually for many years, did not get their renewals after voting the wrong way:

It has been said, that the power of licensing publick houses is so absolutely in the discretion of the justices of the peace, that this court will never award a mandamus for the licensing of a publick house; but it is equally true, that the abuse of a discretionary power ought to be more severely punished than the abuse of a power which is not discretionary. In the present case it appears manifestly, that the power of licensing publick houses was very grossly abused; for it is not probable, that the occupiers of twenty publick houses should all have misbehaved themselves at the same time, as to make it improper to grant them licenses.

Rex v. Nottingham, 96 ER 858 (KB 1755)

Neil H. Buchanan said...

Self-correction: It was "What the actual fuck?" not "What the absolute fuck?" But since it's a self-correction, I'll give myself a self-pardon.

And yes, people who know deep down that they're tolerating a slide in Gilead-dom hate to be forced to confront that fact.

Stay tuned for the tax crimes column. I appreciate the idea and the references.