Testing the limits of pardon power

As the indictments resulting from the special counsel investigation continue to edge closer to the inner circle of President TrumpDonald John TrumpTrump claims media 'smeared' students involved in encounter with Native American man Al Sharpton criticizes Trump’s ‘secret’ visit to MLK monument Gillibrand cites spirituality in 2020 fight against Trump’s ‘dark’ values MORE, the potential for pardons increases. Indeed, Trump has suggested that a pardon for his former campaign chairman, Paul ManafortPaul John ManafortDebate builds over making Mueller report public BuzzFeed story has more to say about media than the president Dems revive impeachment talk after latest Cohen bombshell MORE, is not off the table. Trump has also asserted that he has the right to pardon himself.

The pardon power has long been viewed as within the discretion of the executive branch, beyond the scope of judicial review. There are a few recognized limits. Pardons can only apply to federal crimes, and pardons are not available in cases of impeachment. But the primary check on executive abuse of the pardon power is understood to be democracy.

As Michigan State University law professor Brian Kalt put it, a president who issues unwise pardons “gets voted out of office or he is impeached.” But critics still maintain that pardons should be subject to judicial review. The nonpartisan organization Protect Democracy argued that the judicial branch has a duty to ensure pardons “respect individual constitutional rights and reflect the constitutional system of checks and balances.”

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This is not a frivolous position. To see why, it is important to appreciate both how the framers viewed the pardon power as well as the ways in which subsequent changes to the Constitution have affected that original understanding. The text of the Constitution supports the key position that the framers viewed democracy as the essential check on use of the pardon power by the president, either directly through an electoral defeat, or indirectly through significant favor of impeachment.

The direct electoral check, however, can no longer function today in the way the framers intended. When the Constitution was ratified, a president could be elected every four years in perpetuity. That changed decades ago with the adoption of the 22nd Amendment, which limits a president to two successive terms. This means a president need only delay issuing controversial pardons until the day after he or she wins a second term, when there is no longer any direct electoral check on the pardon power.

Consider when President Clinton issued the pardon of his brother, Roger Clinton, who had been convicted for drug possession in Arkansas, right before leaving in 2001. Had that pardon been issued at the end of his first term, before the 1996 election, it likely would have become a campaign issue, one that might have been rather influential in the minds of voters.

It is not difficult to imagine President Trump waiting until after the 2020 election to issue unwarranted and nepotistic pardons. Assuming his son, Donald Trump Jr.Donald (Don) John TrumpRussian pop star linked to Trump Tower meeting cancels US tour Conservatives pound BuzzFeed, media over Cohen report BuzzFeed story has more to say about media than the president MORE, were indicted and convicted in 2019, even a pardon right after the 2020 election would effectively save the younger Trump.

Given that the 22nd Amendment has diminished the direct electoral check on the pardon power, judicial review can serve as an effective substitute. Federal courts can ensure pardons do not run afoul of other constitutional duties such as the promise of equal protection of the laws.

There is precedent for this approach. When the Constitution was ratified, the American practice was to allow litigants in civil and criminal cases a certain number of peremptory challenges that could be used to eliminate potential jurors for any reason whatsoever. In a series of cases beginning in the 1980s, however, the Supreme Court held that these challenges could not be used to discriminate on the basis of juror race or gender.

Thus, a power once understood to lie outside the scope of judicial review now comes within the reach of federal courts. Faced with a challenge from a plaintiff with standing, a judge likewise can determine whether a pardon squares with recognized constitutional limits on executive action.

Although the framers of the Constitution believed that elections would work to keep presidents in line, the people eventually sought a permanent limit through the 22nd Amendment. This structural change altered the original understanding. Ultimately, it should not mean that occupants of the Oval Office in their second term get to issue pardons with impunity.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”