The writer is a Harvard professor of constitutional law
If, as Alexander Pope reflected in 1711, “to err is human, to forgive, divine,” then the US Constitution’s pardon power — the prerogative of forgiveness — should be beyond reproach.
Instead, a godless US president who appears incapable of forgiveness has seemingly perverted this instrument of mercy into another grave threat to the rule of law. Donald Trump’s recent twisting of the pardon power risks leaving a damaging legacy: a blueprint for manipulating this vestige of royal prerogative to place presidents and their cronies above the law. But a remedy exists: investigation and potential prosecution. We must treat any obstructions of justice we uncover as the crimes they are.
It is critical to distinguish between two types of corrupt pardons. There are those that are merely contemptible for their intrinsic immorality — they may give a free walk to American war criminals (the Blackwater contractors convicted of a massacre), corrupt politicians (former Illinois governor Rod Blagojevich, convicted of trying to sell a Senate seat), and relatives (Mr Trump’s son-in-law’s criminally convicted father Charles Kushner). There are others that pose structural dangers by placing the president and his circle above the law and thwarting investigations into wrongdoing.
Pardons in the former category, detestable as they are, not only fall within the president’s power but rarely constitute crimes. They should be forcefully condemned for signalling that corruption and cruelty are permissible, even rewarded in America. Future presidents should strengthen the standards for their own grants of clemency and take seriously their duty, in the Supreme Court’s words, to preserve the nation’s “confidence that [a president] will not abuse” the pardon power. But the only real bulwark against these sorts of pardons — short of amending the constitution to remove the power to issue them — is to avoid electing rotten presidents.
Mr Trump’s grants of clemency to close advisers Paul Manafort and Roger Stone belong to a distinct and far more dangerous category. These pardons appear to be the latest steps taken which may in effect have hindered inquiries into crimes that Mr Trump’s close associates have been convicted of committing. Put plainly, these pardons could potentially amount to criminal obstruction of justice or bribery.
Fear that a president might abuse the pardon power to obstruct justice is anything but novel. At the 1788 Virginia convention to ratify the constitution, George Mason worried that the president might use the power to “pardon crimes . . . advised by himself.” He also predicted that prospective pardons could be used as obstructive tools to “stop inquiry and prevent detection”.
But James Madison rejoined that there would be swift impeachment and removal for any president misusing the pardon power. Mr Trump has already been impeached — although the Republican controlled Senate voted not to remove him from office. The odds of a second impeachment before Joe Biden’s inauguration are slim to none. But the constitution expressly contemplates another solution — post-presidency criminal prosecution — saying that an impeached president “shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law”.
Pardons used as a means of obstructing justice are integral parts of criminal conduct precisely because the president has the formal power to grant them. The very breadth of that power enables a president to deploy it as a tool of criminality. If pardons used to reward silence could be invalidated by the courts, they would be worthless to their recipients and useless in a scheme to interfere with a formal inquiry.
The result is not to negate the pardons issued but to expose a president to prosecution for the way he deployed them. If Mr Trump abuses pardons to shield himself and key allies from justice, that could be charged as criminal obstruction of justice, an abuse of the constitutional power of clemency to accomplish an illegal end.
In a poetic turn of justice, such obstructive pardons would make prosecuting a president who granted them easier. If Messrs Manafort and Stone and former national security adviser Michael Flynn were called to testify against Mr Trump, their pardons would make it much harder for them to invoke their constitutional rights to remain silent to avoid self-incrimination.
If Mr Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licences to commit heinous crimes with impunity. As Mason worried in 1788, the president would have “establish[ed] a monarchy, and destroy[ed] the republic.”
There still remains the possibility that Mr Trump might try pardoning himself. But, as Richard Nixon’s justice department opined in 1974, a self-pardon is not within the president’s constitutional power. A self-pardon twists the text of the constitution — one doesn’t “grant” things to oneself — and violates the centuries-old tenet that nobody can be trusted to judge his own case. It would also liberate every president to ignore federal criminal laws while in office, placing the holder functionally outside the law.
Perhaps the only way to limit this potential misuse of the pardon power would be to prosecute an ex-president who tries to use it on himself. If Mr Trump seeks to pardon himself, the next attorney-general must zealously investigate him and prosecute any federal crimes that are uncovered. Forgiveness may be divine, but it cannot vindicate misbehaviour. Democracy and the rule of law demand that we hold everyone to account.