“Trump Prepares to Offer Clemency to More Than 100 People in His Final Hours in Office,” reported yesterday’s Washington Post. These would be in addition to the many, many corrupt pardons that Donald Trump has already issued, benefiting a rogues’ gallery of felons running the gamut from political co-conspirators to war criminals.
To hear even most left-leaning lawyers tell it, however, there is simply no way to stop what Trump is doing in his last days in office. This defeatism is puzzling at best, because it relies on a kind of naive literalism that even the most aggressive textualists would never tolerate when interpreting something as simple as a private contract, much less the Constitution of the United States.
As I will discuss here, it is perhaps understandable that the law of presidential pardons is radically underdeveloped, notwithstanding the fact that we are well into our third century as a constitutional republic. But when viewed with even a mildly skeptical eye, it is clear that Donald Trump’s pardons should be reviewed by courts and roundly rejected as abuses of what was always meant to be a limited presidential safety valve.
Even if Trump does not pardon himself, which is clearly not allowed, there is no reason why we should look at all of his other pardons (and those yet to come in the next 24 hours), throw up our hands and say, “Well, it sucks for the country, but … nuthin’ we can do!”
Unilateral Disarmament and the Pardon Power
Where have people gotten the idea that the pardon power is absolute and unreviewable? The relevant constitutional provision, in Section 2 of Article II, states that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The President “shall have power,” but how much? As a first cut at understanding that text, one might expect a first-year law student to say that because there are no stated limits on the pardon power, that power must be absolute. The theory would be: “If it is not explicitly limited, it has no limits.” But that is quite a leap of logic. Surprisingly, however, it is by no means only still-forming legal minds that have jumped to that conclusion.
Just as one of many examples, the former U.S. Attorney Chuck Rosenberg recently had the following exchange with a friendly cable TV interviewer only a few days ago:
Interviewer: “Obviously, [the President] has the power to pardon individuals … involved in this insurrection.”
Rosenberg: “You’re quite right, the President has that power to pardon. The Constitution only puts two limits on the pardon power. You can’t exercise it in cases of impeachment, and it’s only for federal crimes. So here he could pardon … rioters and members of the mob who were at the Capitol on January 6. That said, should he issue the pardon? … He has plenary authority. He can use it as he likes. … I hope, hope, hope he doesn’t do it here. But he can.”
“Plenary authority”? Again, other than explicit limitations regarding impeachment and federal crimes, the idea is apparently that the text does not say “limited power,” so it must be unlimited. Even worse, because the power is supposedly unlimited, these part-time textualists conclude that the pardons are not even reviewable by courts.
Even though this view is widespread, it is legally baseless. Indeed, it makes so little sense that people would summarily reject it in any other context.
The Pardon Power Is Just as Limited as Other Constitutional Powers
As I argued back in 2017, after Trump issued the first of his high-profile pardons of unrepentant, serial lawbreakers, this overbroad reading of the Pardon Clause is both grammatically unsupported and inconsistent with the way virtually every other constitutional question is approached in American law.
The conventional misreading of the clause is agrammatical because it treats an ambiguous provision as if it were unambiguous. Saying that a president “shall have Power” does not say how much power he or she has. Neither “all” nor “some” modifies the word “Power”; how does it follow that the power is unlimited? The Framers could have included either modifier, but they did not do so. Why put one word into their mouths rather than the other?
One answer might be to claim that there is an interpretive canon that requires us to read text broadly. But the Constitution includes all kinds of unmodified language that we would never imagine is presumptively boundless.
For example, even self-styled textualists like the late Antonin Scalia admitted that the Second Amendment‘s provision that “the right of the people to keep and bear Arms” must “not be infringed” is a limited right. And this is so even if one makes the mistake of agreeing with Scalia and his colleagues that the Constitution grants that right to individuals, not well-organized militias.
The Second Amendment does not say some arms, but only the most unhinged advocates would say that the Constitution permits private ownership of heavy artillery or nuclear weapons. The “right to bear arms,” then, is not a right to bear “all arms,” without limitation. Moreover, even such a limited right to bear some arms is also limited by the place in which arms can be borne, with “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” (in Scalia’s words) fitting easily within the confines of the Constitution.
Again, “keep and bear arms” is textually indistinguishable from “shall have power to grant,” in the sense that both offer unmodified terms—“arms and “power” (and “bear,” for that matter)—that might or might not be deemed absolute. What about other provisions of the Constitution?
Backing up by one amendment, the Constitution includes the admonition that “Congress shall make no law … abridging the freedom of speech.” Does that mean that Congress can make no law abridging the freedom of speech in any way? Our naïve 1L student might think so, because that is literally what the First Amendment says, but everyone knows that such a reading is not only nonsense but has been uniformly rejected across the ideological spectrum from the very beginning of the country.
Can Congress, say, pass laws prohibiting incitement? As we have been reminded vividly in the days since the January 6 insurrection that Donald Trump incited, we do have such laws. Is it constitutional to punish someone for the content of their speech? Among other provisions, that is precisely what perjury statutes are designed to punish.
Federal employees can be punished for engaging in political speech while performing their employment duties. Similarly, “[t]he Uniform Code of Military Justice prohibits military personnel from using ‘contemptuous speech’ against the President and other leaders.” Even more basically, libel and slander laws certainly abridge freedom of speech in the literal sense that the exercise of such speech can be punished under the power of the state.
Even more surprisingly, the Fourteenth Amendment provides that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” yet the Supreme Court has held that that provision—which actually modifies the word “law” with the expansive adjective “any”—is essentially a dead letter.
These limitations on the right to free speech and to bear arms—to say nothing of the erasure of an entire provision of one of the Reconstruction Amendments — are so much a part of our constitutional fabric that even reminding ourselves about them almost sounds like an exercise in smart-alecky snark. “You don’t have the free speech right to lie under oath, you know!” Certainly, I never thought that it would be necessary to say explicitly that free speech is not absolute, yet in this context, that is absolutely the fundamental point. The Constitution is not presumptively interpreted such that ambiguities are always resolved in favor of the most expansive meaning possible.
If It Is So Obvious, Why Are So Many People Confused?
Like all constitutional provisions, then, the pardon power should be read not as presumptively absolute and unreviewable. And as I noted in my 2017 column on the subject, one standard method of resolving constitutional ambiguity is to look to the Federalist Papers, in this case Federalist 74, which was written by Alexander Hamilton. As I summarized it at the time:
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.”
I went on to point out that the U.S. Supreme Court, in Ex Parte Grossman (267 U.S. 87 (1926)), held that the possibility of issuing pardons “is a power entrusted to the executive for special cases” (emphasis added).
Again, this is familiar ground for lawyers, especially constitutional lawyers, who are accustomed to looking to the words of the Founders, Supreme Court precedent, and all of the usual tools that we use to interpret legal texts.
To put it differently, it is the assertion that the pardon power is absolute and unreviewable that is the extreme and controversial statement, not that the pardon power—like every other power—should be understood to operate within reasonable limits. Indeed, if the absolutists were correct, then even self-pardoning would have to be permitted, as would anticipatory pardons (for crimes not yet committed). Why? Because if “pardons” means all pardons, then it must mean all pardons.
I have spent the last few years trying to understand why, in the matter of presidential pardons but not in any other matters, so many highly intelligent and informed people are willing to suspend the critical faculties and legal skills that they have developed over their careers. It is all the more surprising seeing this surrender by people who are understandably so distraught about how Donald Trump has exercised the pardon power. Why the self-imposed helplessness?
The explanation, I think, is in part embarrassing and in part understandable but wrong. The embarrassing aspect is that even very informed and motivated people frequently lapse into groupthink and lazily accept the conventional wisdom without bothering to think critically, even when they would like to reach a different answer. “What will everyone else think of me if I offer an unconventional opinion?” is apparently a strong deterrent from even thinking about alternatives, much less saying them. (If we stop ourselves from even imagining that the conventional wisdom could be wrong, we do not have to stop ourselves from saying something contrarian, because we have prevented ourselves from having something contrarian to say.)
The “understandable but wrong” part of the explanation for the widespread, unquestioning acceptance of the misreading of the Pardon Clause is that there truly is very little law on which to rely when assessing the pardon power. By comparison, First and Second Amendment jurisprudence is wide and deep, and everyone who even considers addressing questions in those areas (or other areas of constitutional law) knows that there are live controversies about, say, the limits of the Free Exercise Clause.
There are entire law school courses on the First and Second Amendments, as there are on many other areas of the law. Yet the conventional wisdom regarding the Pardon Clause would have us believe that there is nothing more to say than this: “It’s absolute, except maybe for self-pardons and pardons for crimes not yet committed. Maybe.”
Again, however, this is somewhat understandable in that there is very little caselaw from which to draw when it comes to possible limitations on the pardon power. But it is of enormous consequence to note the difference between the following two sentences: “No court has ever limited the pardon power,” and “The pardon power is unlimited.”
The Supreme Court, and courts in general, will not have ruled on a question if it has never arisen. Was Bill Clinton’s unwise (at best) decision to pardon Marc Rich an abuse of the pardon power? We do not know. Was Gerald Ford’s nonspecific “full, free, and absolute pardon” of Richard Nixon for any and all Watergate-related crimes an abuse of the pardon power? We do not know.
It is true that longstanding practice means something to the law, but it should go without saying that it does not mean everything. Otherwise, the law would never change. “We’ve never seen a court limit this power” could merely mean that the right case has not yet arisen.
By analogy, consider the Supreme Court’s limitations on jury awards in BMW v. Gore (517 U.S. 559 (1996)). There, the Court held that a “$2 million punitive damages award is grossly excessive and therefore exceeds the constitutional limit.” The Court did not say that there had never been a limit but that it was a good idea to create one. It said in essence that there had always been a limit, one that had never been reached before, and that this particular punitive damages award was the first one that exceeded it.
In short, courts could easily look at the history of pardons in the United States and draw either of two mutually consistent conclusions: (1) There have been pardons in the past that exceeded the president’s power, but they were allowed to stand by not having been challenged, or (2) Even though there have always been constitutional limits on the use of presidential pardons, no president has ever reached those limits by abusing his powers. Trump should not be given infinite leeway simply because all of his predecessors were unwilling to abuse the pardon power.
Either way, courts could now look at, say, Trump’s decisions to pardon his political cronies who refused to cooperate with the Mueller investigation and say that those pardons clearly exceed the inherent constitutional limitations on presidential pardons.
In an upcoming column, I will explore the ways in which prosecutors, courts, and even private citizens might begin to challenge Donald Trump’s lawless abuse of the pardon powers. As a starting point, however, we must all recognize that the unthinking acceptance of the absolutist view of the pardon power is, at the very least, open to challenge. Justice demands nothing less.