How great is the pardon power?

How great is the pardon power?
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President TrumpDonald John TrumpWhite House sued over lack of sign language interpreters at coronavirus briefings Wife blames Trump, lack of masks for husband's coronavirus death in obit: 'May Karma find you all' Trump authorizes reduced funding for National Guard coronavirus response through 2020 MORE recently commuted the sentence of Roger StoneRoger Jason StoneNew HBO documentary lets Gaetz, Massie, Buck offer their take on how to 'drain the swamp' The Hill's Morning Report - Presented by Facebook - Brawls on Capitol Hill on Barr and COVID-19 Democrats blister Barr during tense hearing MORE, who refused to snitch under the investigation into Russian interference in the 2016 election. That action can be seen not only as a payoff to a willing accomplice but as a signal to other advisers that if they protect Trump when he needs it, he will protect them from federal prosecution.

As Trump gears up for the 2020 election, a few unscrupulous aides might be wondering if they can rely on that promise, if they are tempted to push the edges of the law in the campaign. Even if he wanted to, could Trump insulate those aides from criminal liability for electoral fraud? Unlike with Stone, those aides would not want to wait for a trial to receive a pardon since Trump might be long gone by then. The aides would instead need what might be called a prophylactic pardon that can protect them from future prosecution. Can the president offer that kind of protection?

The answer is yes. The Supreme Court has decided that a pardon can be issued any time after a crime has been committed, including before trial. So even if Trump loses in November, he will have until the inauguration in January to pardon his accomplices. That might be comforting to his aides, but it is a false comfort. Anyone who relies on this prophylactic pardon is playing a very risky political game. A prophylactic pardon might be lawful in theory, but it faces two serious obstacles in the Constitution.

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The first issue is that the president can only use the pardon power in ways consistent with the requirements under the Constitution. Two provisions, the due process clause and the take care clause, undermine prophylactic pardons in this context. The due process clause holds that pardons and commutations must obey certain basic procedural safeguards. At least four members of the Supreme Court have affirmed that a commutation would be unlawful if it could simply turn on a flip of a coin, as arbitrary justice is no justice at all. A pardon given for unlawful reasons would be even worse than arbitrary, as it would be deliberately corrupt.

The second provision that could prove problematic for Trump is the take care clause, which says that the president must “take care that the laws be faithfully executed.” As professors Ethan Leib and Jed Shugerman recently wrote in the Washington Post, this provision embodies the notion that the president has a fiduciary duty to faithfully promote the public interest. If the president grants a pardon for personal reasons at the public expense, such as to encourage electoral fraud, that act would be void.

The second impediment to any prophylactic pardon is the pardon clause itself. It restricts the pardon power through both textual constraints and implicit limitations. Most observers are aware of the textual constraints of the pardon clause, which explicitly affirms that pardons may be used only for federal crimes and not with impeachment proceedings. However, the second type of constraint is more relevant for our purposes.

The Supreme Court has repeatedly stated that the pardon clause should be interpreted to include implicit restrictions on its scope. Specifically, it should be read to incorporate common law limits that existed in England back at the time when the Constitution was drafted. The Supreme Court assumed the Framers knew of these limits and embraced them.

What limits existed on pardons back then? One limit was the specificity requirement, meaning a pardon was valid only if it identified the specific crimes absolved. Given this understanding, the president has to specify the crimes he seeks to pardon for his action to be valid. Needless to say, the specificity requirement poses a serious problem for Trump. To shield an associate, Trump would need to specify all of the crimes his aide had committed. If any were left out, the aide could be prosecuted.

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The specificity requirement makes such prophylactic pardons politically unpalatable. But even if Trump were shameless enough to issue a pardon with an exhaustive list of crimes, the very list itself would undermine the validity of the pardon. It would make his knowledge of those crimes and his corrupt intent crystal clear. That would make the pardon vulnerable to challenge under the due process clause and the take care clause.

In the end, his aides should think twice before relying on his promise of a pardon in payment for trying to game elections. Like most of what Trump sells, this promise should come with a warning of buyer beware.

Aaron Rappaport is a professor at University of California Hastings College of Law and a former assistant director with the National Economic Council.