Everything You Ever Wanted to Know About Pardons

This post is a follow up to the Op-Ed I did on Thursday for USA Today on the Flynn Pardon. If you missed, it, you can read it on the USA Today website or as a blog post.

Article I, § 2 of the United States Constitution provides the President the authority “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” (The “except in cases of impeachment” means that a pardon cannot undo an impeachment.)

Some constitutional scholars argue that the only pardons that can be challenged and/or are invalid on their face are self-pardons, but all other pardons (even those that constitute an abuse of power) cannot be challenged. The argument is that the pardon power as given in the Constitution is broad and there is no mechanism for judicial review.

There are a few flaws in that argument.

First, there is no mechanism for judicial review for anything in the Constitution. Judicial review (the idea that the courts are the final arbiters on what is constitutional, and the courts have the task of interpreting the Constitution) comes from a court case, Marbury v. Madison.

Second, self-pardon is not specifically forbidden by the Constitution either, which means these scholars making an exception for self-pardon. Self-pardon is obviously invalid. Self-pardon literally creates a king, who can break any laws with impunity. But in making an exception they acknowledge that the pardon power, while given broadly, does have limits. Why make an exception for self-pardon and not for this scenario:

Person A commits a crime that benefits the president. For example, Person A has evidence that would show the president’s guilt. Person A is ordered by a court to turn over the evidence. Person A destroys the evidence. The president pardons Person A for committing the crime.

Or this scenario:

The president encourages his staff to violate particular laws and promises them that if they violate the law, he will pardon them. They violate the law. He pardons them.

(In the second example, the president can be charged with a crime, aiding and abetting, but in the first example, he cannot be. He hasn’t committed a crime.)

As long as we are allowing limits, why should there be a limit on self-pardon and not other equally corrupt pardons?

Ultimately these questions will be answered by a court. I don’t see a difference between self-pardon and the president directing a crime and then pardoning the person who commits the crime, and have a hard time believing a court would say it’s acceptable. Allowing such pardons to stand as valid encourages very bad behavior [understatement].

I also think that a presidential pardon that broadly wipes out all crimes going back to a person’s birth would have to be invalid (by which I mean that a court would say no, it’s too broad.)

Q: Can future crimes be pardoned?

No. Pardons cover past offenses. For the President to issue a pardon, the crime must have already been committed, but the President need not wait for an indictment or other information before granting the pardon.

In fact, the latest development in the Flynn case is that a trial judge raised the possibility that judge Sullivan (the judge overseeing Flynn’s case) could find that Trump’s pardon of Flynn is too broad if it provides protections beyond the date of the pardon.

Q: Is accepting a pardon an admission of guilt?

No. Courts have generally agreed that a person can accept a pardon without admitting guilt. One example of this would be a pardon for a crime where a person was convicted but later evidence proved the person’s innocence.

Q: Does a pardon expunge guilt?

No. The conviction stays on the person’s record. The pardon mitigates punishment.

Can pardons be given for all crimes committed, or do all crimes have to be listed?

Ford pardoned Nixon for any crimes he may have committed as president. Whether that was too broad we don’t know because it was never challenged. (Under our system, since Marbury v. Madison, courts have the final say in interpreting the Constitution.) The Constitution talks about “offenses against the United States,” so it seems to me that the pardon has to be at least somewhat specific. The pardon in Flynn’s case was for “any and all possible offenses” arising from Mueller’s investigation, as well as any related grand jury proceedings. Whether that is too broad, we will likely find out in the coming weeks or months.

Can family members be pardoned?

On his last day in office, Bill Clinton pardoned his brother for drug use. I don’t see this as a corrupt pardon because Bill Clinton didn’t benefit from the crime that his brother committed (drug use.) Corrupt involves self-dealing, just as abuse of power occurs when a person with official power manipulates the levers of government for personal benefit.

When people ask about whether family members can be pardoned, I suspect they are thinking of the Trumps where the crimes are for the benefit of Donald Trump, in which case the pardons would be corrupt and therefore challengeable.

Why does the president even have the pardon power.

In 18th century America (as elsewhere) criminal punishments were often cruel and physically harsh: hanging, branding, whipping. From Alexander Hamilton: The laws “partake of necessary severity . . .without exceptions.” (Fed. Papers)

Alexander Hamilton also thought that a single person was more likely to use the pardon power with conscience than a committee. (That wasn’t one of his better ideas, it seems to me.)

Could Congress enact a law that says pardoned people cannot run for elected office?

I don’t believe so. The Constitution offers very few limitations on who can run for president. States, however, have power over their elections and can limit who can be on their ballots.

How does a pardon affect a person’s Fifth Amendment rights?

On theory, once a person has been pardoned, they are free to testify because they can’t be prosecuted for that particular offense. Here’s the limitation: A person can still claim the fifth on the ground that they remain liable under state law, or for a related crime. (Also, as a practical matter, if we’re talking about someone like Flynn, he’d lie anyway because I think he’s so unhinged from the truth I’m not sure he can tell the truth.)

I can understand why the Republican Party might be indulging Trump’s re-election fantasies for a bit longer—to try to ensure he doesn’t sabotage the two Georgia senate elections in January. Thereafter, however, or perhaps a bit before, it seems to me it would be in the interest of politicians like Pence, Pompeo, Cruz, Cotton, Haley, Hawsey, etc., to turn sharply against Trump to ensure he cannot run in 2024 and block their presidential chances. This would apply especially to Pence, making it unappealing for him to agree to pardon Trump should Trump resign before Biden’s inauguration. Do you agree?

It has occurred to me that it’s not in Pence’s best interest to pardon Trump. It was political suicide for Gerald Ford (although, of course, that was a different era.)