A Legit Power Can Be Abused
People have spoken – too much, in my view – about how broad, how nearly unlimited, is the power to pardon that the Constitution grants the President.
It’s true that, except for matters of impeachment, the Constitution does not mention any limitations on that pardoning power with respect to federal crimes.
But the pardon power does not exist in a vacuum. That power is not as fundamental as the whole structure of the Constitution, with its checks and balances and its commitment to the rule of law.
So while the Constitution grants the President many “powers,” he not permitted to “abuse” those powers. And the President using the pardon power to defeat the rule of law would seem a clear “abuse of power.”
(See “Note # 1” below for a relevant passage from the “Articles of Impeachment” of Richard Nixon regarding Nixon’s “Abuse of Power.”)
Donald Trump seems to be considering such an abuse of power. Last fall, Trump was reported to have inquired into his ability to pardon not only his aides and his family, but even himself. He was asking that question, of course, in the context of the ongoing Mueller investigation. In other words, Trump wanted to know how he might use the pardon power to put himself above the law.
It is the fact that such use of the pardon power would be unprecedented that accounts for the permissibility of such use being “unsettled” law. It has never come before the Court.
But the fact that one cannot point to some decision establishing settled law on the issue should not be a reason for timidity in asserting that the pardon power does not trump (pardon the expression) the whole thrust and purpose of our constitutional system, according to which we are a nation of laws and not of men.
That the president cannot place himself “above the law” –– unaccountable for whatever crimes he may be found to have committed – should suffice to prove it an abuse of whatever power he employed for that purpose.
A Possible Manafort Showdown
The issue of the pardon power arises now as Mueller builds pressure on his one-time campaign manager Paul Manafort.
A legal expert said on television this week that there are three people most likely able to implicate Trump: Don Jr., Jared Kushner, and Manafort. (I wonder why Steve Bannon and Mike Flynn aren’t on that list.) This expert asserted that the two family members would not turn on Trump. (Which I don’t assume is true, as they are both young men, who may not want to serve the kind of jail time Mueller may be able to hold over them.) Which, he said, leaves Manafort as key for Mueller.
It might be remembered that after Manafort and his man Gates were arraigned, Manafort’s lawyer came out and gave a bizarre statement that was plausibly interpreted as a public pitch to President Trump to provide Manafort with a pardon.
No such pardon has been forthcoming, but neither has Manafort been forthcoming with Mueller. Which may indicate that Manafort – who is otherwise in danger of spending the rest of his life behind bars – is still hoping that Trump will purchase his silence with a pardon.
(See Note # 2, below, regarding how stripping Manafort of his Fifth Amendment protections – which is an implication of a pardon — might figure in here.)
It seems that some kind of showdown between the investigation and the President – with Manafort in the middle — may be approaching.
(Mueller is working to turn Manafort’s associate, Gates, and he has recorded a guilty plea from another figure connected with Manafort’s work for Kremlin-linked Ukranians — the previously unknown Dutch lawyer, Alex Van Der Zwaan. And if Manafort’s moment of truth is drawing nigh, so also is the time when Trump must decide whether – to protect himself from Mueller – he will add abusing his pardon power to his various tools for obstructing justice.)
Shot Across the Bow
Too often – as a general proposition — the lead voices of the anti-Trump forces are reactive, rather than taking the initiative to take the battle to Trump. This has been true for years: the bad guys do something bad, and only then do the good guys rouse themselves to criticize and complain.
For years, I’ve been saying, “Press the Battle.”
That’s been regrettable in general, and it also would be a mistake on this specific matter matter of what Trump may do with his pardon power. Waiting for Trump to exercise that power – to pardon Manafort, or Kushner, or whomever – and only then questioning its constitutional legitimacy is a recipe for weakness.
Better to fire a shot across Trump’s bow now—loudly enough to put the matter into the public consciousness, saying something like:
“If you, Mr. President, try to pardon any of the people in your circle to silence witnesses useful to Robert Mueller’s investigation, it will be a clear abuse of your pardon power. It will be another piece in the clear pattern of your attempting to obstruct justice and undermine the rule of law.
“We will take you to court if you try to abuse your pardon power in this way. And we will include any such attempt to obstruct justice in any articles of impeachment ( just as Nixon’s abuses of power were part of the basis for the articles drawn up to impeach him).”
There are two ways this could pay off.
First, it might pre-emptively dissuade Trump from taking such a step. But even if not,
Second, it would create a frame through which the American people would see any such pardon(s) and ready the public to oppose such abuse of power.
Warnings are good that way. Time soon for a shot across the bow.
Note # 1: Article 2 of the Articles of Impeachment of President Nixon
concerns “Abuse of Power.” The second charge in that article of impeachment reads as follows:
“He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.” (Emphasis added.)
Note that it matters, in terms of whether a presidential action is permissible or impeachable, what the President’s purposes are in taking his action. If the president’s purpose is “unrelated to any…lawful function of his office,” this document is saying, the President is abusing his power.
Many American presidents have pardoned many people. But never have they pardoned people–as is anticipated could be the case with Trump—for the purpose of frustrating a lawful and vitally important investigation in which the President himself is likely the ultimate target.
Such pardons – of aides, family, and/or himself, implicated of federal crimes through the Mueller investigation – would clearly be part of that already well-established pattern of Trump’s conduct where is purpose is the “obstruction of justice.”
Note # 2: It has been noted that a pardon not only removes criminal liability, but it also removes the protections of the Fifth Amendment. (If you are already pardoned, you cannot “incriminate” yourself.”) Which might seem to meam that a pardoned Manafort can still be compelled to testify, under penalty of being held in contempt of court.
But another bit of unsettled law about the pardon is whether the President could pardon such a contempt citation. I would say that would be a violation of the separation of powers – i.e. the power of the judicial branch – and one would expect that the Supreme Court would be eager to defend the powers of the judiciary, and thus be motivated to disallow such a pardon. But on the other hand, Trump’s pardon of Sheriff Arpaio in Arizona, who had been found guilty of contempt of a federal court, has not been overturned.