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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, July 22, 2017


[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
There are reports (denied though it both is proper to cover all the bases and his comments imply he has been briefed about the matter) the Trump Administration is examining pardons of family members etc.  This could interfere with the Mueller investigation since that is tied to prosecution (showing that Congress still has a role here) though be hard to totally stop it. There are even reports of the suggestion of a self-pardon.  Meanwhile, the ability to indict a sitting president is itself not a total non-factor. This led me to investigate the issue some.

[I provided links that argue both sides of the no indictment of a president during their term and find the argument for a complete bar weak. This is particularly the case if the punishment does not involve detention or such imprisonment is put off to after they leave office. Realistically, if it ever was used, it would likely be used in blatant cases.  Or, maybe for minor cases where punishment would not interfere.  This includes any warrant for arrest -- if the president refuses the warrant, who's going to force him?  But, yes, we shall see if something pops up eventually.

The Constitution has limited explicit immunity but I can understand some implicit arguments being put in place. But, a total bar, especially with a vice president being available to serve if the president is unable, is needlessly extreme.  This leaves concern for state prosecutions raising some sort of federalism concern, which is being argued in Trump's state civil litigation.  But, if he actually murdered someone on Fifth Avenue?  Why shouldn't he be subject to NY murder laws? Citations to the Supremacy Clause only are question begging as to what the Constitution actually requires there.] 

The last link notes that there is some problems for Trump if uses the pardon power, particularly because there is no immunity if there is no liability per the Fifth Amendment.  The pardon power only applies to federal crimes, but not too many of the people (though Trump himself is not included here) probably don't have much to worry from state prosecution. The link also notes (as do others) that state investigation is an alternative route here as might be private lawsuits.  Also, a pardon might be done via a bribe etc., and grounds for impeachment or even criminal action.  The pardon itself won't be negated, but like "speech plus," something might be actionable.  Finally, a pardon might violate some other constitutional limit, like only pardoning Catholics. The link argues the pardons would hold but the president might be targeted for the constitutional violation.  Maybe so but if someone told me establishment of religion was inherently void, I would not find that an unreasonable argument either. The 1A came later. 
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession.
This was cited by a law professor, a 1915 Supreme Court opinion (Burdick v. U.S.)  in which someone actually refused a pardon to avoid needing to testify.  I find that statement as overboard. Consider, e.g., an amnesty after a rebellion of some sort [Federalist No. 74 cited such a case "to "restore the tranquillity of the commonwealth"] to avoid the trouble of having specific hearings of innocence and guilt.  I'm not sure that we should impute guilt in each case.  Finally, in the 1920s, Biddle v. Perovich sets forth another view:
A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
My reading of this is that a pardon, minus a conditional pardon where the person has to do something (e.g., a drug treatment program), is not something a person can refuse.  It is not a "private act of grace" [cf. Chief Justice's framing in United States v. Wilson, where someone refused a pardon for strategic reasons -- Burdick discusses the background.] This is not to say that a pardon does not generally imply guilt.  But, if it is done before prosecution, perhaps for reasons like President Ford to move on as a nation, or maybe in fear that a future prosecution will be unjust, why should guilt necessarily be inferred?  One article cited said:
While a pardon is widely understood to lessen the social stigma that attaches to a conviction, all else equal, pardoning authorities assume that the applicant was guilty as charged and properly convicted, at least in the absence of an exceptional showing of innocence or miscarriage of justice.
And, I think this in a useful qualifier. The matter of self-pardons was addressed in a link above, but the basic idea is two-fold. One, "pardon" implies that someone is being pardoned, it is not a solo action. Two, there is the overall principle that someone should not be the judge of their own case. This might not be some absolute rule, but there doesn't appear to be a reason for it to apply here, especially with the first aspect.  There does not seem to have been any understanding, nor should we have one (since original understanding to me is of limited note) of that being possible. It might not be deemed likely this would come up but at some point a president might be prosecuted and a pardon could interfere. 

The limit involves impeachment. It's somewhat interesting since at first blush I wondered how it would come up.  Isn't the point of impeachment merely to remove people from office and perhaps ban them from future ones?  But, such a burden very well might be of the type possibly a pardon would erase, since they also erase other barriers such as not voting. Also, it was suggested by Joseph Story that it would be used the President to help cronies who were impeached that they themselves conspired with in some fashion.  Finally, the Constitution also says:
the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
So, once impeachment begins, the pardon power cannot be used to interfere, which basically so far only arose in the case of federal judges. (Andrew Johnson wasn't going to be prosecuted, leaving one other case.) And, even there, the general trend was that they were impeached after being prosecuted (one exception that comes to mind involved a judge during the Civil War).  But, if impeached first (since it is a congressional power, it would be curious if it was reliant on executive prosecution anyhow), the president would seem not to have the power to pardon the person.  And, it is quite possible that even if that president didn't want to prosecute, the next one might wish to do so.*

[If the president does pardon a federal official open to impeachment, it would seem to me that the Congress still has the power to impeach. Again, impeachment is a political act tied to the office, not a criminal prosecution.  That extra provision interestingly suggests removal by impeachment "shall" mean the person is liable, limiting the pardon power, a criminal matter too.  The pardon holds, since it was done before a case of impeachment arose, but it still wouldn't negate the impeachment power. OTOH, any criminal liability would be waived if covered by the pardon.]

The concern in recent years was that presidents have been too lax in use of the pardon power.  There were a few cases where it was felt that the power was used dubiously (e.g., George Bush with certain Iran-Contra personnel, Clinton with Marc Rich and Bush with Libby).  That sort of thing is going to happen.  Some states put more restraints on executive pardon power, and it might very well be a good idea to have some limits. OTOH, again, the general problem is that there is not a good enough process in place to use pardons and reprieves in a more effective fashion. Still, even a drug prohibition opponent would question an across the board pardon of every single non-violent marijuana offense.

That sort of thing did arise when one or more governors blocked the death penalty, but it is part of the balance involved.  One can argue that the requirement to faithfully execute the laws guards against total abuse of the pardon power.  As noted above, certain crooked pardons can be targeted as well.  Trump does potentially have broad discretion for cause trouble here, though prosecutions are not really of immediate concern. It is more bringing out all that happened and provide some real consequences. It is quite possible that someone will be subject to prosecution here, but not holding my breath that Trump Jr. or the like actually will be.

Finally, I mentioned impeachment. That too has been rarely used, but it provides an overall principle of limited government.  It also provides a lesser power to investigate as does other things.  Congress, e.g., has an interest in safeguarding federal elections and determining possible ways to do so will be assisted by investigation. Meanwhile, Mueller is investigating which is a primary driver of the reports we led off with.


*  One thing I saw was that the provision leaves open prosecution without double jeopardy being a concern.  The provision came before the explicit bar was in place, but it was a generally understood limit. Plus, even now, someone removed by impeachment cannot claim that's all that is allowed.

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