Preventing Pardon Abuse
Limit Abuse of the Pardon Power
According to Federalist Paper No. 74, the Founders gave the President the pardon power to enable relief in circumstances where “justice would [otherwise] wear a countenance too sanguinary and cruel.” Yet the pardon power is not unlimited and is open to abuse without Congress acting to deter and ensure accountability for unlawful or abusive pardons.
- Enact legislation to enable Congress to step in if a corrupt or abusive pardon interferes with certain Department of Justice investigations or prosecutions;
- Codify the requirement to appoint a private attorney when the Department of Justice drops an investigation or prosecution because of pardons that interfere with courts ability to uphold people’s constitutional rights or improper self- or self-protective pardons; and
- Enact a resolution reiterating that bribery and obstruction laws apply to issued or offered pardons.
The pardon power, while broad, is not absolute. President Trump has used or threatened to use the pardon power in three ways that contravene and undermine the rest of the Constitution. While in the past concerns about political blowback or shame largely prevented such abuses, President Trump’s approach to the pardon power suggests that is no longer the case.
Three types of pardons violate the broader constitutional structure as well as the purpose of the pardon power as described in Federalist 74:
Pardons that place the President and his allies above the law. Self-pardons (and similarly self-protective pardons) contradict the core American legal principle that no one is above the law. The executive branch has issued its own legal analysis that arrives at the same conclusion: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” A self-protective pardon is one in which the President offers or grants a pardon in an investigation in which the President, his family, his campaign, or his business is a potential target for purpose of protecting himself. This type of self-protective pardon is unconstitutional given that a self-protective pardon achieves the same corrupt goal as a direct self-pardon by allowing the President to be judge and jury in his own case.
Pardons undermining judicial power and the Bill of Rights. When President Trump pardoned Arizona Sheriff Joe Arpaio for criminal contempt of court, he neutered the court’s authority to enforce its own orders. The pardon of Arpaio also undermines the court’s protections of private constitutional rights because Arpaio was found guilty of criminal contempt after he disregarded a court order that prohibited him from committing continued violations of the constitutional rights of plaintiffs in a civil case against him. Thus, the judiciary’s power to enforce the Bill of Rights was eviscerated. Courts need to have the necessary resources and authorities to protect their power as a co-equal branch of government.
Pardons granted or offered for a corrupt or obstructive purpose. A third limit on the pardon power comes from acts of Congress that prohibit bribery and obstruction of justice. It would contradict laws on obstruction of justice to issue or offer a pardon to impede or obstruct a criminal investigation. Indeed, the articles of impeachment against Richard Nixon included his “endeavoring to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.” For a President to leverage “favourable treatment” by issuing or dangling a pardon to influence participants in criminal proceedings would run afoul of these laws. Such a pardon would not be a proper and lawful exercise of the President’s pardon authority.
The same goes for a pardon given in exchange for a bribe. For example, some questioned whether President Clinton’s pardon of Marc Rich in 2001 was a quid pro quo for campaign donations from Rich’s wife. Federal prosecutors empaneled a grand jury and spent years investigating. As then-Senator Jeff Sessions said when he endorsed the FBI investigation, “From what I’ve seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense.” While the grand jury did not indict President Clinton for bribery, the pardon power cannot be used to evade bribery laws.
Each branch of government has a role to play in preventing abusive and unconstitutional pardons. To be sure, much of the responsibility will remain with the President and executive branch advisers. But Congress also has a role to play. Committees and individual members should use their platforms and oversight authority to explain the limits on the pardon power and ensure accountability for improper pardons. But there are also legislative measures Congress can enact to deter and ensure accountability for the three categories of unlawful or abusive pardons described above, including:
Ensuring that Congress can step in if a President uses or offers a pardon to impede an investigation into himself:
- Congress should enact a measure along the lines of The Abuse of Pardon Prevention Act of 2018. That measure would give Congress access to key materials from any ongoing law enforcement investigation that the President seeks to impede with his pardon power, preventing a President from using a self-protective pardon to bury an investigation and place himself above the law.
- That measure could be strengthened by clarifying definitions of relevant terms like “pardon application” and “witness”; adding an additional enforcement mechanism; covering situations in which the President’s campaign or personal business interests are a target, subject, or witness; and ensuring protection for pardon whistleblowers.
- Congress may also wish to require the Attorney General or White House Counsel to provide reports on any occasion in which the President directly or indirectly offers or dangles a future pardon to one or more specific individuals.
Codifying the requirement to appoint a private attorney if the Justice Department (DOJ) drops pursuit of a contempt for not following a court order that protects others’ constitutional rights in a case in which DOJ abandons an investigation or prosecution after a self-protective pardon.
- The Federal Rules of Criminal Procedure call for the courts to appoint a private attorney to step into the shoes of DOJ if DOJ fails to prosecute a contempt of court matter. Congress should codify this provision into the U.S. Code to make clear that it is required, including in the face of pardons and for cases on appeal. It should also apply in cases where the contempt is for defying a court order protecting people’s constitutional rights.
- Congress should also expand the private attorney requirement to cover self-protective pardons that lead DOJ to abandon an ongoing investigation or prosecution in which the President, his family, campaign, or business is a subject, target, or witness.
Enacting a resolution reiterating that the President cannot grant or dangle a pardon in violation of bribery and obstruction laws
- The resolution would reiterate that pardons cannot be made in exchange for some benefit or to influence or impact participation in an investigation; that courts should not view such pardons as valid and enforceable; and that the acts of issuing or offering pardons for these purposes may be high crimes and misdemeanors that could lead to impeachment proceedings.
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