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April 25, 2018
Donald Trump is perfectly within his constitutional authority to pardon his attorney Michael Cohen, even before he is accused or convicted or a crime, as the president recently mused. Trump was also within his authority when he pardoned Scooter Libby, as well as ex-sheriff Joe Arpaio. And Trump might be within his authority to pardon his children and many others in his administration, and there is little anyone can do about it. And that is the problem. The concept of unlimited discretion of the president to issue pardons and reprieves is clearly inconsistent with the concept of limited government and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.
The historical roots of presidential pardoning power are sourced in British monarchical power. At one time British kings and queens had unlimited political power, subject to no checks and balances. “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon. To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.
Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89. Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people. No government official, including a king, should be given unlimited and unchecked authority.
Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson. In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke. So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights. All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body. The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.
However some kingly like powers seemed to work their way into the Constitution. Article II, Section 2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate. These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all. The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use. Unfortunately the courts have not agreed to such checks.
In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the
“power thus conferred is unlimited, with the exception stated. 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. 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.” The pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.
President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences. While all these pardons met constitutional muster, no doubt some could be considered abuses of presidential power.
Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices. Yet pardons should not be beyond constitutional limits and review. Already there are some limits to the pardoning power. Trump cannot use it to escape impeachment, or to protect himself from any civil law suits such as for sexual harassment. Nor can he issue pardons for violations of state criminal laws. Moreover, presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford–or be subject to impeachment as Harvard law professor Noah Feldman contends. But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends. A constitutional morality that takes rights seriously and also believes that no one should profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power. Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.
The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent. That decision and dicta are a relic from a different era and legal system. If the American Revolution and Constitution stand for anything it is that no one is above the law. Granting presidents unchecked pardoning power, especially in how Trump might use it with Cohen, is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt. Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels”–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.