Well, today is the day on which President Trump will have to grant whatever pardons he’s going to grant before leaving office tomorrow. Speculation runs rampant about what he’s going to do.
One of the things the Trump administration has exposed in its four year run is the deficiencies in our Constitution. And one of those deficiencies has to do with the pardon power. The pardon power is part of Clause 1 of Section 2, which generally sets forth the essential Presidential powers.
|Section 2. Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.|
That clause obviously does not give us any detail about the limits of the pardon power, or the mechanics of how it can be invoked.
It should be noted at the outset that we inherited from English common law the principle that the monarch was vested, absolutely and exclusively, with the power to pardon those accused or convicted of crime. In the American Constitution that power was granted to the President of the United States. The power is very broad, and there has been very little case law to shape or define the power. Although pardons generally are issued on an individual basis, the President also may give amnesty to an entire group. For example:
- President Andrew Johnson effectively pardoned all the soldiers that were part of the Confederacy.
- President Jimmy Carter pardoned all those who evaded service in the Vietnam War by violating the Military Selective Service Act.
We also know that pardons can be remarkably broad in other ways. For example:
- President Gerald Ford pardoned Nixon for any crimes he might have committed during his Presidency, including crimes that hadn’t even been investigated yet.
Probably the most important case dealing with the pardon power was the post-civil war case of Ex Parte Garland, which had to do with the very broad pardon that Andrew Johnson issued to participants in the Confederacy. The question at bar had to do with an act that Congress had enacted that required candidates who wanted to practice law to swear an oath they had never served in the Confederate government. At the time, the Supreme Court ruled that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866). The court also ruled that the enactment had been both a bill of attainder and an ex post facto law.
Things We Know:
- A Presidential pardon applies only to federal law.
- A Presidential pardon can be refused.
- If you receive a Presidential pardon, you lose your 5th Amendment protections against self-incrimination with respect to the incident that you were pardoned for.
- A Presidential pardon is not prospective, and cannot excuse any criminal behavior after the pardon is issued.
- A Presidential pardon does not necessarily clear civil disabilities, such as the loss of the right to vote.
- A Presidential pardon does not lead to any kind of monetary compensation, such as for people who have been wrongfully convicted.
Things We Don’t Know:
One of the things that we do not know is whether a President can pardon himself. President Drumpf has, of course, maintained that he can, but there is no Constitutional authority to back him up on this. It would make for a fascinating case.
The other question about which there is some ambiguity is the question of whether one President can undo the pardon of another President. Again, there is little reason to believe that he can. There are a couple of incidents that seem to suggest that a pardon can be taken back until it has been delivered, but once delivered, it appears to be game over.
Will the President Pardon the Insurrectionists?
He might, although it seems unlikely at the moment. If he did, the primary reason would be to reward his supporters for their support. On the other hand, we know that Trump really only cares about himself, and if he did pardon the insurrectionists, it could strengthen the impeachment case against Trump, which we’re sure Trump does not want.
Will the President Pardon Himself?
This also seems unlikely, mostly because doing so might open Trump up to more civil suits. If he were to pardon himself, he would have to admit to having committed crimes — after all, it is null and void to pardon someone for a crime that never happened — which Trump surely does not want to do. On the other hand, he is looking at a lot of legal exposure, including:
- Tax fraud (long-standing investigation)
- Interference with an Election (call with the Georgia Secretary of State)
- Incitement to Riot (January 6th insurrection)
- Obstruction of Justice (from the Mueller Report)
Will the President Pardon his Family?
This one is currently unknown. It raises some of the same concerns as if he were to pardon himself, since it would (again) be an admission that his family engaged in criminal activity.
Who Else Will the President Pardon?
This is also unknown. What was reported last night is that Trump met today with his staff to go over the long list of people he could pardon, and that Trump is rumored to be considering pardoning a long list of people.