Con Law Exam 2017: Pardon Power, Trump, Braavos, and More

by Michael Dorf

Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here.

Question 1

On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets:

Despite the tweet, Trump does not take any immediate additional action to issue further pardons. Meanwhile, fearful of a political backlash in the 2018 midterm elections, on January 16, 2018, each house of Congress overwhelmingly passes a bill titled the Make America’s Pardon Power Great Again Act (MAPPGAA). The bill provides as follows:
Sec. 1.  No pardon issued to any person who has been charged with an offense or is under investigation in connection with alleged wrongdoing in furtherance of any alleged or actual acts by or on behalf of the pardon-issuing president’s administration or prior presidential campaign shall have any legal force or effect.
Sec. 2.  No pardon issued by a president to himself or herself shall have any legal force or effect.
Sec. 3.  This Act shall apply to any and all pardons issued on or after initial passage as a bill by either house of Congress.
The MAPPGAA bill reaches the president’s desk on January 17, 2018. On that same day, President Trump issues the following proclamation:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Donald J. Trump, President of the United States, do hereby grant a full, complete, and unconditional pardon to all persons, including myself, who may have committed any offense charged as a result of the investigation by Special Counsel Robert Mueller, his successor in that office, and/or any person working for any such special counsel, whether directly or indirectly.
The day after issuing the proclamation, President Trump vetoes MAPPGAA. Hours later, each house of Congress overwhelmingly votes to override the president’s veto, thus enacting MAPPGAA.

On January 20, 2018, President Trump holds a press conference at which he declares that, like the Roman Emperor Caligula before him, he has become a god. He orders the assembled members of the press corps to kneel before him. With the exception of Breitbart’s White House correspondent Charlie Spiering, none do. Trump flies into a rage and attempts to tackle CNN reporter Jim Acosta. Secret Service members break up the melee, whereupon Trump passes out. He is taken to Walter Reed National Military Medical Center, where a team of neurologists diagnoses Trump as suffering from dementia caused by neuorsyphylis, very likely a result of a previously undiagnosed and untreated syphilis infection that he contracted one to two decades earlier. In its initial stages neurosyphylis can be treated with penicillin, but Trump’s infection is so far advanced that the doctors believe that he has little likelihood of recovering his sanity.

Upon learning the foregoing news, Vice President Pence assembles the Cabinet, which, with the exception of Attorney General Sessions, who recuses himself, votes unanimously to declare Trump “unable to discharge the powers and duties of his office” under Section 4 of the Twenty-Fifth Amendment. Trump learns of this action while watching Fox & Friends from his hospital bed and attempts to leave the hospital. The Marine guards posted outside his room subdue him and agree to transmit his written declaration to congressional leaders that he is “as fit as ever and also a god.” With only two nay votes in the House and one nay vote in the Senate, Congress determines that the president is indeed “unable to discharge the powers and duties of his office.” Pence begins to serve as Acting President on February 2, 2018.

As one of his first acts, Pence issues a proclamation declaring “null and void” President Trump’s January 17 pardon proclamation, on the ground that “it was the product of the same unfortunate infirmity that led to the president’s incapacity.”

Shortly after Pence’s proclamation, back in federal district court, Paul Manafort’s attorney moves to quash the indictment currently pending against him, citing the president’s January 13 tweet and his January 17 proclamation. Special Counsel Mueller argues that the pardon is ineffective, citing MAPPGAA and the Pence proclamation. A hearing has been scheduled before U.S. District Court Judge Amy Berman Jackson, who is presiding over the Manafort case.

Meanwhile, you are working as an extern for Senator Bob Corker of Tennessee, who, as you know, is an outspoken Republican critic of President Trump. Senator Corker is preparing to appear on the Sunday morning television talk shows and wants to get his talking points in order. He asks you to write him a memo addressing the following two questions:

(a) Will Manafort succeed in having his indictment dismissed?

(b) Suppose that despite the doctors’ predictions, President Trump is cured with an experimental medical treatment. Suppose also that Special Counsel Mueller then obtains an indictment against Trump for conduct that occurred before Trump’s dementia took hold. Will Trump’s self-pardon be effective in blocking prosecution?

Note: In answering these questions, be aware that the Supreme Court has never repudiated the following sweeping declaration regarding the president’s pardon power: “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” Ex Parte Garland, 71 U.S. 333, 380 (1866). However, neither the Supreme Court nor any other court has ever faced circumstances quite like these. Moreover, Senator Corker believes that he, as a member of a co-equal branch of government, has as much right to say what the Constitution means as the Supreme Court does.

With all of that in mind, now write the memo.

Question 2

In recent years, about a thousand immigrants from the distant city-state of Braavos have settled in Blackfish, Montana, a city with a population of roughly 50,000 people. Most of the Braavosi immigrants worship the Many-Faced God, also known as the God of Death. Among the Braavosi religious practices is assisted suicide. An adult worshipper of the Many-Faced God who wishes to die visits the House of Black and White, where a clergy member (known in the faith as a “faceless man”) brings the worshipper to a pool and hands him or her a cup of water from it. The water is poisoned, leading to a swift and painless death after the worshipper drinks it. In years past, the faceless men (and women) also sometimes acted as hired assassins who killed unwilling victims, but there is no evidence that they brought this practice with them from Braavos to Montana.

In response to a news story describing the practices of the Braavosi, the Blackfish District Attorney was outspoken in condemning what she called “the barbaric death cult of Barbados [sic].” She has repeatedly denounced what she calls “Satan-assisted suicide.” Her office issued a press release announcing plans to “begin investigating and prosecuting such murders immediately.”

You are an associate in a law firm in Blackfish. The firm’s new client is Jaqen H’ghar, a green card holder and Braavosi immigrant. H’ghar is a faceless man. Within the protection of attorney-client confidentiality, he tells a partner in the firm that he has already assisted in two suicides at the Blackfish House of Black and White and that he intends to assist in more. H’ghar states that while his grandfather, who was also a faceless man, sometimes carried out assassinations in Braavos, he only ministers to consenting competent adults.

H’ghar asks your firm to sue the Blackfish District Attorney in federal district court for an injunction against criminal prosecution on the ground that such prosecution would violate the federal Constitution. The partner tells H’ghar she’ll need to do some research before deciding whether to take the case. She then asks you to write a memo assessing the likelihood of success of H’ghar’s proposed lawsuit. Your memo should evaluate the best constitutional arguments that could be made on behalf of H’ghar.

The partner reminds you that physician-assisted suicide is legal in Montana, pointing to the case of Baxter v. State, which is described in note 4 on page 536 of your casebook. In that case, the Montana Supreme Court noted that suicide is not a crime under Montana law. It then considered whether a doctor aiding a terminally ill patient to commit suicide by furnishing a lethal medication could be prosecuted for homicide. The court noted that victim consent would shield the doctor from homicide liability unless allowing that result violates public policy. After canvassing cases from Montana and other states, the court in Baxter concluded that public policy would not be violated by allowing physicians to aid terminally ill patients to commit suicide through self-administered drugs. There is some chance that H’ghar could successfully argue that, as a matter of Montana law, he qualifies for the exception recognized in Baxter, but the partner has asked a different associate to address such state law issues. Your analysis (for part a) should assume that the Montana courts would find that the homicide law does apply to H’ghar in a prosecution of the sort threatened by the Blackfish District Attorney, addressing the federal constitutional issues that would then be raised.

(a) Write the memo.

(b) [For purposes of this sub-part only:] Despite your best efforts, the federal district judge dismissed H’ghar’s lawsuit; the firm appealed, but the US Court of Appeals for the Ninth Circuit affirmed the dismissal; and the Supreme Court denied the petition for a writ of certiorari. In the meantime, however, in a case involving a faceless woman (Stark v. State), the Montana Supreme Court ruled that Montana law not only doesn’t forbid physician-assisted suicide; it permits assistance “by any close adult relative, clergy member, or therapist, so long as the person committing suicide is of sound mind and ultimately self-administers.” In other words, the argument produced by the other associate at your firm was persuasive in state court.

A national bipartisan backlash ensues. Montana’s Senator Tester (D) and Senator Daines (R) co-sponsor a bill in Congress that quickly becomes federal law, the Innocent Life Protection Act (ILPA). In relevant part, ILPA provides:
Whosoever delivers any lethal agent that has moved in interstate or foreign commerce or uses an implement that has moved in interstate or foreign commerce to deliver a lethal agent to another person for the purpose of that other person using the lethal agent to end his or her life shall be guilty of the crime of assisted suicide, if the person in fact uses that lethal agent to end his or her life, unless the person delivering the lethal agent is a licensed physician AND the person ending his or her life is terminally ill, AND the state in which the administration occurs permits physician-assisted suicide in such circumstances as a matter of state law. The penalty for assisted suicide shall be imprisonment for up to thirty years. The provisions of the federal Religious Freedom Restoration Act (RFRA) shall not apply to this Act.
H’ghar tells the partner that the poison in the water in the House of Black and White is produced from flowers that can be grown in Montana. However, the cup in which the poison water is handed to a person committing suicide is made from Valyrian steel and is thus imported. The partner asks whether it would be possible to use a cup made entirely from materials available in Montana, but H’ghar says no, that would render the suicide impure and an offense to the Many-Faced God. Accordingly, the partner asks you for a memo assessing whether the ILPA as applied to a future assisted suicide performed by H’ghar would be unconstitutional as beyond the power of Congress.

Write the memo.