Thursday, December 24, 2020

The President's Pardon Power Is Not Absolute (a Dorf on Law classic)

Note to readers: The Dorf on Law classic column below was published on August 29, 2017.  It seems particularly pertinent in light of recent events.
For those of you who celebrate Christmas, may your holidays be much happier than the rest of 2020 was.  For all others, may your Thursday be much happier than the rest of 2020 was!

by Neil H. Buchanan

In what might be his most terrifying move yet (although there is plenty of competition for that dubious distinction), Donald Trump further burnished his racist credentials last week by issuing a presidential pardon to the former Maricopa County (Arizona) sheriff Joe Arpaio.

For those who have only the vaguest sense of how bad Arpaio's 24-year reign of terror was, Harper's provides a sobering list of outrages, including (but sadly not limited to) these offenses against human decency:
"[Arpaio] shot footage of female inmates that could be viewed online; forced hundreds of inmates not yet convicted of any crime to march from one jail to another in pink underwear; oversaw guards who referred to Latino inmates as 'wetbacks' and 'Mexican bitches,' strapped to a chair a paraplegic inmate and then tightened the restraints until his neck broke, and forced a female inmate to give birth in shackles." (italics added)
That is the person whom Trump has deemed a personal friend and an American hero.  Talk about being able to judge someone by the company he keeps!

As bad as the Arpaio pardon was, however, the greater worry among people who care about the rule of law -- honest conservatives every bit as much as liberals and centrists -- is that Trump might have discovered a shortcut to autocracy.

From now on, the worry goes, Trump might simply pardon people whenever it suits his purpose, directly negating the judicial branch and indirectly negating the legislative branch of government.  This might be the biggest leap yet toward a truly imperial presidency (and maybe outright fascism).

I certainly share those concerns, but I am also worried that those who oppose Trump are unilaterally disarming after the first shot has been fired.  Too many people are saying that there is nothing short of impeachment that can be done to stop Trump from turning the pardon power into a weapon of dictatorship.

Fortunately, they are wrong.  The pardon power is not absolute, and impeachment -- as merited as it already is in Trump's case -- is not the only way to respond to Trump's potential abuses of the pardon power.

As some commentators have noted, the all-too-believable coming parade of horribles could include this: Trump announces that he is giving "full, free, and absolute" pardons to Jared Kushner, Donald Trump Jr., Paul Manfort, Michael Flynn, and anyone else whom Special Counsel Robert Mueller might try to "flip" with an immunity deal.

One of Trump's lawyers then notices that such pardons would not cover future offenses, which is a problem because pardoned witnesses cannot invoke the Fifth Amendment's protections against self-incrimination.  This turns out to be easy to get around, however, because all of these witnesses could then perjure themselves (to protect Trump) with the promise that Trump would also immunize those offenses by updating the full/free/absolute pardons afterward.

The inquiry into possible collusion between Trump's campaign and the Russian government could thus be effectively ended, even without firing Mueller.

Sounds bad, no?  It is, but after reading the outpouring of commentary about the Arpaio pardon, it is impossible not to notice a rather amazing exercise in group hand-wringing among Trump's critics.  Nearly all of them say that the Arpaio pardon was wrong, but almost every one of them sadly adds that there is nothing we can do about it.

Among anti-Trumpists, a standard description of such pardons (of Arpaio or hypothetical pardons to come) is that they are "dangerous and wrong but not illegal."  As one commentator put it: "Unfortunately, the presidential pardon power is unreviewable."

Again, that is certainly wrong.  In fact, it represents a surprisingly narrow literalism that people would never countenance in any other area of law, constitutional or otherwise.  Like almost everything else in life, the extent of the president's pardon power is highly contestable and ultimately unclear, which means that it is amenable to legal argument and political mobilization.

Therefore, throwing up our hands and saying that the only way out is impeachment is not merely defeatist but irresponsible.

The Constitution states that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."  Any first-year law student would know that there are ways to make language that is much more definitive than the pardon clause open to interpretation.  Why not here?

One answer is that there are some constitutional provisions that are unambiguous, whereas others are properly contestable.  We fight over terms of art like "due process", "cruel and unusual punishment," and "equal protection of the laws," but we do not fight over the 35-year-old age requirement for presidents or the Electoral College's supremacy over the popular vote.

That is true, but there is nothing about the pardon clause that puts it in the "crystal clear" category that cannot be contested.  Indeed, the language of that clause turns out to be rather difficult to describe as anything but contestable.

In fact, many legal experts have already said that the pardon power is not  absolute, both because (as noted above) the president cannot issue prospective pardons and because of the question of whether a president can pardon himself.  Trump and his partisans think that the answer to the latter question is yes, but the weight of legal opinion is that the answer is not a slam dunk but is almost certainly no.

We thus know that people are already not reading the pardon clause as broadly as it could be read.  What other vulnerabilities can one find in the clause?

Note that there is no modifier before the word "power."  It says neither "absolute and complete" nor "strictly and narrowly circumscribed," nor anything in between.  There are canons of interpretation that cut in both directions, and I have no doubt that there are people at this very moment writing articles about which canon applies to the pardon power.

At the very least, however, we can note that other constitutional language that seems absolute-ish has been sensibly limited, mostly without controversy.  As contentious as the political debate is regarding the Second Amendment, for example, there is actually nearly complete agreement that the words of that amendment cannot be interpreted in their broadest sense.

That amendment, after all, says that the right to keep and bear arms "shall not be infringed."  And there are plenty of bumper stickers and t-shirts that ask, "What part of 'infringed' do you not understand?"  Even so, the Supreme Court has unanimously agreed that people cannot keep and bear some arms: anti-aircraft weapons, tanks, and nuclear missiles are all uncontroversially on that list.

Now, one could say that the lack of clarity there is not the word "infringed" but rather the word "arms."  But if that is the legal opening, then certainly the pardon clause should also be analyzed by asking what counts as a "pardon."  Maybe weaponizing pardons, as Trump might be preparing to do, creates a category of non-pardon pardons that logically parallels the category of infringeable arms.

One standard move in interpreting unclear constitutional language is to look to what the framers of the Constitution were thinking when they wrote it.  Enter the Federalist Papers.  Sure enough, there is an essay (Federalist 74) in which Alexander Hamilton (writing under the name Publius) discusses the pardon power.

Hamilton wrote: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed."  "As little as possible" does not mean "never," so we are off to an interesting start.  Moreover, the power is supposed to be "benign."

Hamilton spends the relevant paragraph describing why the pardon power was vested in one person rather than in some larger body.  He explains that there are times when groups of people, for strategic reasons, take actions that cause the justice system to create injustices.  Giving only one person the ability to undo such injustices preserves "an easy access to exceptions in favor of unfortunate guilt," without which "justice would wear a countenance too sanguinary and cruel."

This sounds very much unlike the kinds of pardons that Trump might yet undertake.  (The Arpaio pardon is at least a somewhat closer call, I suppose, given the unrepentant bigot's age.)  It thus seems unlikely that the people who wrote the pardon clause were thinking that the president's power covered all possible pardons, no matter the reason or circumstances.

Again, I am not claiming to be doing anything clever here.  This is the completely normal way that legal arguments are carried out.  We look at the text, look for ambiguities, and we look for interpretive guidance from relevant sources.

We also look to the courts.  It is highly relevant that the courts, especially the Supreme Court, have only rarely been called upon to rule on the limits of the pardon power.  The founders surely expected that the power to pardon that they were writing into the Constitution would be used rarely and judiciously, and it generally has been.  Trump's potential radical expansion of that power thus makes it all the more likely that his attempts to pardon would not be constitutional.

Nearly a century ago, the Supreme Court did rule on the pardon power, in Ex Parte Grossman, 267 U.S. 87 (1926).  There, although the Court provides grist for Trump supporters (and despair for anti-Trump defeatists) by saying that "whoever is to make [the pardon power] useful must have full discretion to exercise it," it also says that the pardon "is a power entrusted to the executive for special cases."

"Special cases" is hardly a self-defining term, either, but the point is that the Court made it clear that the pardon power is to be used only for certain purposes.  It cannot become a weapon of executive power, and if it does, the courts ought to have something to say about it.

There is a way in which the anti-Trump argument here boils down to the famous aphorism that the Constitution is not a suicide pact.  But I think it is actually more along the lines of an even more basic legal tenet, which is that we should avoid interpreting documents in ways that make them self-negating.

The Constitution is not a stupid document written by careless men.  Why should we think that an isolated clause gives the president the power to undermine the entire constitutional structure, destroying the balance of powers among the branches of government that the framers went to such great pains to create?  Why should we read expansive modifiers into the pardon clause that are not there, when other implicit modifiers would lead to a more sensible -- and small-r republican -- result?

But at the very least, I have to say again that it is more than a bit amazing that so many people -- people who otherwise seem to be highly motivated to try to prevent the creation of a Trump Empire -- are being incredibly lazy thus far in the emerging debate over the pardon power.

There are plenty of questions that will need to be answered, not only as a matter of interpreting the pardon clause but in determining who would have standing to sue and the nature of judicial remedies.  So let's get started and have those discussions.  There is nothing absolute about the president's pardon power, and we risk the future of the country by pretending that there is nothing to be done.


CEP said...

Here's a hypothetical that illustrates how non-absolute the pardon power really is, related specifically to that particular — vulgar, inappropriate, fundamentally unjust — pardon that originally gave rise to this column.

(1) A pardon relates to federal-government-imposed consequences. It does not, however, block a civil rights lawsuit by individuals who were hurt by the conduct in question. The obvious rejoinder here is "but qualified immunity!" The less obvious refutation of that, though, is that "surely a pardon demonstrates that the conduct for which that individual was pardoned violated established law, and therefore falls outside of qualified immunity." Bluntly, it's almost unheard of for US Attorneys to prosecute government officials on truly novel legal theories; and the facts of this case even more so. A "qualified immunity" argument therefore fails… and it at least fails on a motion for summary judgment.

(2) State authorities (and law) can also provide avenues for relief, in particular regarding this state official. And then, lurking in the background sort of like Abe Vigoda…

(3) There's RICO. There's a substantial civil component to RICO, even though the statute (18 U.S.C. § 1961 et seq.) is in the "criminal" code. Let's see, here:
We have multiple RICO defendants, consisting of the former sheriff and top lieutenants;
We have both a formal association (the sheriff's department; there's some case law regarding arms of the state being not treatable here, but in the Ninth Circuit that case law is less than iron-clad) and associations-in-fact as RICO enterprises;
We have multiple acts over an extended period;
We have particular predictate RICO offenses.

Would it be hard? Yes. Needlessly hard. So are a lot of other things worth doing, like desegregating public school systems in the face of intransigence.

Michael A Livingston said...

Wasn’t there litigation about the scope of the pardon power when the outgoing Tennessee Governor (I think his name was Blanton?) issued a bunch of pardons to friends, contributors, etc. in the 1970s? (Yes, I understand that is State rather than Federal Law, but my guess is the statutes were not all that different).

Steve Davis said...

Any time you consider the scope of a Constitutional provision exercised by a President you don't like, you have to consider the application of whatever principle you adopt exercised by someone else you do like.

I see no good reason to limit the pardon power. It's better to set a bad man free than to constrain the ability of the President to set free those punished or imprisoned unjustly. Any limit put on the pardon power could be used to bad effect. Plus, I see no case law or any legal precedent for arguing for constraints on the pardon power. I also see no good historical case for limiting the pardon power. Trump pardoned Arapaio, and now he's pardoned other bad actors who did his dirty work, and Clinton pardoned Marc Rich, but the country is not appreciably worse off for any of that. Once you put a limit on the pardon power, you must create a procedural mechanism to enforce the limit, and then you give the President's enemies another political lever they can use against him. I see that as doing far more bad than good.

The only case I could imagine would be where the pardon power is used on a wide scale to circumvent the rule of law and help the President pursue unlawful schemes. Arguably that's happening here, and were Trump facing several more years of office impeachment might be worth considering, but since he's very nearly out the door it's not a big consideration in this instance.