With Donald Trump having been evicted from the White House, and with the country now embarking on its second month under President Joe Biden’s leadership, some once-immediate issues of public concern have been pushed aside. One of those issues is the flurry of corrupt and unjust pardons that Trump issued during his single term in office, especially after Election Day 2020.
There are undeniably plenty of pressing issues that deserve our immediate attention, from the COVID-19 pandemic to our highly unequal economy to the preservation of democracy, but that should not stop at least some people from spending some time usefully shoring up the rule of law by trying to nullify Trump’s pardons and commutations. Trump tried to undo justice that had already been done, and he also tried to prevent justice from catching up with his cronies and supporters who would deservedly have been caught and sentenced. All of that must be challenged.
Moreover, former Trump lawyer Michael Cohen opined in an interview in late January that Trump might even have granted himself a pardon without admitting to having done so:
I think Donald Trump actually has given himself the pardon. I think he also has pocket pardons for his children and for Rudy [Giuliani] and it’s already stashed somewhere that, if and when they do get indicted and that there’s a criminal conviction, federal criminal conviction brought against him, he already has the pardons in hand.
Cohen is hardly an unimpeachable source, and even he concedes that his conclusion is based on what he knows about Trump rather than having direct knowledge of any “pocket pardons,” so I am not taking his assertion as anything other than an intriguing twist within an already tangled mess. Certainly, however, it was surprising when Trump left office without having announced the self-interested pardons that he had spent years claiming he could grant to himself and other Trumps.
Even without that possible future bombshell, however, it is essential not to allow Trump’s lawless pardons to become an accepted part of American law. The pardon power is limited and reviewable, and now is the time to reverse what can be reversed, as well as to make clear what the current and future presidents can and cannot do.
The Pardon Power Is Not—and Never Was—a Grant of Unchecked Presidential Prerogative
In a Verdict column last month, I described an odd conventional wisdom that has congealed not only in the press but even among many lawyers and legal scholars who have no reason to give Trump a pass on any of his depredations. A news article in The Washington Post, for example, includes this rather astonishing claim: “The Constitution gives the president the virtually unchecked power to grant clemency.”
Even with the modifier “virtually,” that is a claim that ought to induce spit-takes among readers, because powers given by the Constitution are almost never unchecked, or anything close to it. Yet on this issue alone, journalists and others have signed onto a nonsensical reading of the Constitution, which I will explain again momentarily.
And it is not just the supposedly-lefty Post but the also-supposedly-lefty New York Times—again, in news articles, not opinion pieces—that repeats this anti-constitutional hackishness. A January 26 piece asserts confidently that “[t]he Supreme Court has ruled that the Constitution gives presidents unlimited authority to grant pardons,” but the link embedded in “pardons” leads to another Times column that does not support that assertion.
What these journalists seem to be relying upon, other than citing each other’s unsourced assertions, is the Court’s 1866 decision in Ex Parte Garland. Looking at the Pardon Clause in Article II Section 2—“[the President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”—the Garland opinion includes this juicy sentence: “The power thus conferred is unlimited, with the exception stated,” referring to the explicit exception regarding “cases of impeachment” in the quoted text.
I should note here that even the impeachment exception can be read narrowly or broadly. That is, while the conventional reading of those words is that the President cannot pardon himself to get out from under an impeachment, Professors Corey Brettschneider and Jeffrey K. Tulis have written persuasively that the impeachment exception must certainly have been written to prevent a president from pardoning his co-conspirators in impeachable offenses. The limitation to which the Garland court pointed, then, might be enough on its own to challenge some of Trump’s most egregious pardons and commutations (including those of Roger Stone and Paul Manafort).
My point here, however, goes beyond that admittedly important point, because the word “unlimited” in Garland does not mean what people have apparently been taking it to mean. Here is the Court’s very next sentence regarding the supposedly unlimited pardon power: “It 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.”
We should pause to note that the Court’s words here contradict each other. Having announced that the power is unlimited, the justices then described a limitation on the power: it can only be exercised after an offense has been committed. That limitation, however, is found nowhere in the text of the Pardon Clause. I happen to agree with the Court’s conclusion that such a limitation should be read into the clause, but it is worth pondering why the Court would say, in essence: “Here is a limitation on this unlimited power.”
The best explanation for that odd phrasing is that the Court was not using the word “unlimited” in the way that journalists and many legal scholars (mis)understand it. The Court explains the meaning of “unlimited” when it specifies that the pardon power “extends to every offence known to the law.”
What is not limited, then, is the types of offenses that a president can pardon; but this in no way means that there are no limitations on the pardon power in any other dimension.
To illustrate, imagine an automotive engineer describing a new 360-degree steering system and saying: “The driver’s ability to maneuver is now unlimited.” That would be true as far as turning the vehicle is concerned, but it would not mean that the car can, say, levitate or go back in time. Unlimited is limited to the context.
Similarly, if a statute were to grant to judges complete latitude in terms of the number of months or years that a convicted defendant can be sentenced to spend in jail, and a defendant appealed a 99-year sentence as being too long, a court could say: “The judge’s sentencing power is unlimited.” That, however, would only be meaningful in response to the defendant’s claim that the sentence is too long. It would make no sense to say, “Oh, so if the judge’s sentencing power is unlimited, he can put the defendant in the stocks, or execute him, or force him to wear his underwear on the outside of his clothes.”
The point, then, is that the Garland Court’s statement that the pardon power “is unlimited” specifically meant that the power was not limited to one category or another of offenses. It does not say that the power has no limits in any other category or context.
Before moving on from Garland, I should also note that the paragraph that begins with the two sentences quoted above concludes with these three sentences:
This power of the President is not subject to legislative control. 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.
I believe that that is almost certainly an erroneous conclusion, but even if it were correct, note that the Supreme Court is saying only that the pardon power is not subject to legislative control. The Court does not say that the power is not subject to judicial control, and indeed, the Court (apparently unanimously) agreed to decide the case on the merits, rather than dismissing it as non-justiciable.
At the very least, then, people who rely on Garland as the definitive statement on the expansiveness of the pardon power are stuck with an opinion in which the Court asserts and exercises the ability to limit the extent of that power. Even without congressional action, then, a Garland-inspired court can certainly feel comfortable reading judicially cognizable restrictions into the pardon power.
A Very Strained Quality of Mercy
But beyond that, the Garland Court said only that Congress cannot intervene to prevent the president from showing “mercy,” not that there is no legislative power to put fetters on presidential abuses of the pardon power.
Could a future court use that to argue that the Garland opinion’s reference to “[t]he benign prerogative of mercy reposed in” the president is a further limitation on the pardon power? A Post article from January 20 began with this: “President Trump on Tuesday granted clemency to 143 people, using a final act of presidential power to extend mercy to former White House strategist Stephen K. Bannon, well-connected celebrities and nonviolent drug offenders.”
“Mercy”? Do words have no meaning at all anymore? As I discussed in my column last month, the Framers of the Constitution (and the Garland Court) clearly meant to give the president the ability to undo injustices caused by the blind application of legal rules, showing mercy to people who were ground under the pitiless wheels of justice.
For example, we can look at the harmful effects of over-incarceration of nonviolent drug offenders and conclude that the system was merciless, with a presidential pardon undoing the wrongs that a rigid system created. That is not at all a meaningful description of what happened to Bannon, who scammed people of millions of dollars and is unrepentant. Was pardoning him an exercise of Trump’s “benign prerogative of mercy”?
Constitutional Literalist Lunacy
With Garland appropriately limited to its actual holding, we are left with the original lunacy of the claim—again, a claim echoed by liberals as well as conservatives—that the pardon power is unlimited and unreviewable. And as I explained in my Verdict column last month, that misreading is based on a complete departure from the way that we normally interpret constitutional and other legal texts.
Returning to the text of the Pardon Clause—“[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”—we are left with the question of what to do when there is no modifier on the word “power.” Does it somehow implicitly mean that the power is absolute and unreviewable?
Why would we think so, especially when nearly everyone agrees with the Garland Court that the power does not extend to crimes that might be committed in the future, and almost everyone further agrees that self-pardons are not covered? Absolute and unreviewable power to pardon would of necessity not allow for those exceptions (and would allow “pocket pardons”).
Is the problem that the Framers did not modify the word “power,” when they could have limited it by adding “qualified” or “limited” or “partial”? That is, should texts be read as broadly as possible when there are no modifications?
The Constitution’s writers certainly knew how to modify the word “power.” Article II, in Sections 2 and 3, gives the House and Senate the “sole power” to impeach and convict, respectively. That is, the Framers enhanced the powers that were being given to the two houses of Congress, apparently because they worried that the unmodified word “power” was not strong enough. Yet they did not modify that word in the Pardon Clause. Does that prove definitively that they meant to say that the pardon power was as small as possible? Of course not. At the very least, however, they were aware that the word power could be strengthened, and they chose not to do so in the Pardon Clause.
The point is that there is no absolute rule regarding non-modified words in legal texts. Concluding that the pardon power is absolute and unreviewable, based on the bare text, simply makes no sense. And once we have taken account of Supreme Court precedent, the historical meaning of the pardon power, and the absurdity of believing that the same people who declared independence from a tyrannical despot intended to create an all-powerful American president, it is obvious that Trump’s pardons should not be met with a shrug and the plaintive rhetorical question: “What can we do?”
What Can We Do?
As I noted in my earlier column, the major reason that we have not seen limitations on the pardon power is that it simply has never been tested. That is, we cannot allow ourselves to buy into the circular logic of saying that “the pardon power is unlimited because it has never been limited, so we cannot limit it.”
I am not the only scholar to have made this point. Steven G. Calabresi and Norman L. Eisen, a bipartisan pair who would not be expected to be on the same side of any issue, wrote in The Times last month that Trump’s pardons must be challenged.
Arguing purely from originalist premises, Calabresi and Eisen pointed out that “[t]he original public meaning of the pardon power was that hazy or overbroad pardons are not constitutional …. William Blackstone said in 1769 that general words have ‘a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction.’”
They then wrote: “To be sure, when President Gerald Ford granted a sweeping pardon to the disgraced Richard Nixon, it was imprecise and far-reaching — the phrase was ‘all offenses against the United States.’ But no one ever challenged the Nixon pardon.” In other words, that a pardon was never challenged does not mean that it would have met with approval had it ever been tested in court.
Calabresi and Eisen conclude:
Mr. Trump’s pardons should be challenged legally by federal prosecutors or others. The pardon power is a relic of the royal English prerogative, which, if un-cabined, could be used as a wrecking ball of both our democracy and the rule of law. We believe that Mr. Trump’s midnight pardons of Mr. Bannon and his ilk are unconstitutional and, if reviewed by courts, should be set aside.
As they point out, the primary actors who could challenge the Trump pardons are federal prosecutors. I will explain in a future column, however, that that is by no means the only way in which Trump’s pardons could be undone.
For now, it is enough simply to emphasize that the conventional wisdom regarding the “unlimited” presidential pardon power represents a badly mangled and dangerous interpretation of what can only be a limited and carefully used presidential power. Whether or not Trump has a “pocket pardon” that he will brandish when needed, what we already know about his actions before leaving office gives us more than enough reason to reverse some of those pardons and to limit the legacy of Trump’s damage to the rule of law.
