“I will never roll on Donald Trump,” declared Roger Stone, Trump’s friend, four months before he was indicted in connection with Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential campaign. A jury subsequently convicted Stone in 2019 of obstruction of a congressional investigation, five counts of making false statements to Congress, and tampering with a witness. The court sentenced him to forty months in prison.
When Trump commuted Stone’s sentence in July 2020, many observers believed it was a reward for Stone’s refusal to give Mueller evidence that Trump had lied when he told investigators that he recalled no conversation with Stone about WikiLeaks and Hillary Clinton’s emails. Stone never did implicate his friend. And he lent credibility to the quid pro quo theory when, just before Trump’s commutation, he told a journalist that Trump “knows I was under enormous pressure to turn on him.” Stone added: “It would have eased my situation considerably. But I didn’t.” [207] After the commutation, Stone denied that he implied any quid pro quo: “I would not lie against my friend of 40 years so they could use it for impeachment …. They had nothing.” [208]
Trump is not the first president to be accused of pardoning someone to avoid personal legal jeopardy, though the evidence of a quid pro quo is stronger in Trump’s case than in prior ones. Many presidents have on occasion used the pardon power in controversial ways, or in ways that seem politically or personally self-serving. But no other president has, like Trump, used pardons systematically to serve political and personal goals. And no other president has threatened to pardon himself. There is every reason to think that Trump’s controversial approach to pardons will continue after this book is published—either because Trump loses the 2020 election and thus cannot suffer politically from pardons during his remaining two and a half months in office, or because he wins the 2020 election and faces no electoral penalty from controversial pardons.
Many of the pardon abuses that Trump has committed and that he and future presidents may yet commit cannot be redressed through reforms short of a constitutional amendment. But the pardon power is far from absolute. It can be reformed to check some of its most extreme potential abuses, especially when pardons are part of a corrupt bargain.
Background
Article II, Section 2, of the Constitution confers on the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This power extends to all forms of clemency, including pardons (which forgive the crime) and commutations (which eliminate or reduce the sentence for the crime). This power has only two express textual limitations: It is available only to excuse or mitigate the punishment of federal offenses, and it does not extend to impeachment.
Within its proper scope, the pardon power is broad and consequential. If granted before conviction, it “prevents any of the penalties and disabilities consequent upon conviction from attaching.” If granted after conviction, it requires release from prison and “removes the penalties and disabilities, and restores him to all his civil rights.” [209] The pardon power is not all or nothing. It authorizes the president to “‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.” [210] Presidents need not give reasons for pardons (though by operation of norms discussed in the next section, they typically do so).
Many commentators go further and claim that the pardon power is “absolute.” [211] Much of this rhetoric derives from stray comments in Supreme Court case law. Ex parte Garland (1866), for example, stated that the pardon power was (but for its express exceptions) “unlimited” and “not subject to legislative control.” [212] The court there held unconstitutional a post–Civil War statutory requirement that attorneys seeking to practice in federal courts swear that they had not given “aid, countenance, counsel, or encouragement” to the Confederacy.” [213] The primary grounds for the ruling were that the oath was an unconstitutional bill of attainder and ex post facto law. One of the plaintiffs had received a presidential pardon from punishment for his activities in the Confederacy and claimed the oath was inconsistent with the pardon. The court ruled that its view of the oath’s unconstitutionality was “strengthened by … the effect of the pardon … and the nature of the pardoning power of the President.” [214] In context, the pardon ruling in Garland was unnecessary to resolve the case, and the court’s absolutist rhetoric went far beyond what was needed to resolve the issue before it.
A reader of this case, and of cases that describe the pardon power as “plenary,” [215] could be forgiven for concluding that “the Supreme Court [had] given the … pardon power a broader scope than that enjoyed by the British king.” [216] Not surprisingly, the executive branch has given full-throated support to this theory of “absolute power.” A declaration from Woodrow Wilson’s attorney general is typical: “[T]he President, in his action on pardon cases, is not subject to the control or supervision of anyone, nor is he accountable in any way to any branch of the government for his action.” [217]
The story is, in fact, more complex. The exclusive, “unlimited” nature of the pardon power has been routinely overstated. The Supreme Court has suggested that Congress can enact general amnesties, though the executive branch has contested the point. [218] The court has also said that Congress can authorize executive branch authorities other than the president to rescind or mitigate fines. [219] While a well-specified pardon relieves the individual pardoned from the punishment for the crime committed and restores basic civil rights, a pardon does not necessarily restore the person pardoned to his or her original position. [220] Also, a president cannot force a pardon on the unwilling. [221] And there may be individual rights constraints on the pardon power. One lower court in a prominent case reviewed the conditions of a commutation to ensure that they were “directly related to the public interest” and did “not unreasonably infringe on the individual commutee’s constitutional freedoms.” [222]
There are surely other limitations on the pardon power that have never been made clear because the issue has never been pushed by Congress or resolved by courts. For example, four justices noted that judicial intervention would be appropriate if “a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” [223] A similar idea might apply to the president’s federal pardon power. Another example is a presidential self-pardon. No president has ever granted one, and the issue has divided commentators. Finally, it is likely that Congress in a well-crafted statute can make it a crime for the president to use the pardon power corruptly—for example, for issuing a pardon in response to a monetary bribe. We discuss these latter two issues—self-pardons and criminalizing corrupt presidential pardons—in the “Reform” section of this chapter.
The history of presidents’ use of the pardon power is long and complex. Here we recount the highlights relevant to assessing the Trump administration’s pardon practice and our proposed reform.
Historical Overview
The Pardon Clause in Article II is silent about the proper bases for a presidential pardon. The dominant general understanding at the Founding, expressed by Hamilton in Federalist No. 74, was that pardons were appropriate to “mitigat[e] … the rigor of the law” so that justice does not “wear a countenance too sanguinary and cruel” and to help “restore the tranquility of the commonwealth” following periods of upheaval. [224]
Presidents are not required to give reasons for pardons. But in practice they typically have, and those reasons have basically corresponded to the two purposes identified by Hamilton. First, presidents have sought to mitigate injustices in individual cases: to correct an apparent severity of sentences; to take into account trying personal circumstances, such as family illness; or to recognize that apart from the offense committed, the individual under consideration for a pardon had contributed distinguished public service over the course of a career.
Second, presidents have used pardons to serve the public policy aim of “restoring tranquility.” This has occurred most notably when presidents granted general amnesties related to war or domestic upheaval. George Washington granted amnesty to those who participated in the Whiskey Rebellion, Thomas Jefferson pardoned those convicted under the Alien and Sedition Acts, Abraham Lincoln and Andrew Johnson issued broad pardons to further reconciliation of the Union and the Confederacy, and Jimmy Carter granted amnesty to hundreds of thousands of young Americans who had evaded the military draft during the divisive Vietnam War. The decision to pardon large numbers has not been limited to healing postwar social wounds. Pursuant to an initiative to reduce the sentences of individuals convicted of nonviolent crimes, Barack Obama’s administration invited qualified federal inmates to apply for commutation, and Obama during his time in office commuted 1,715 sentences.
The number of pardons or commutations issued by presidents has varied over different periods in American history. “For most of our nation’s history, the president’s constitutional pardon power has been used with generosity and regularity to correct systemic injustices and to advance the executive’s policy goals,” including legal reform. [225] While precise numbers for the first hundred years of the Constitution are elusive, during this period “low-level pardoning took place largely out of the public eye, but with some regularity.” [226] Individual pardons and commutations diminished over the course of the twentieth century. Presidents from McKinley through Carter granted about 30 percent of individual clemency petitions on average, but the average after Carter is well under 6 percent. [227] The absolute numbers of pardons and commutations per year dropped pretty steadily as well, especially during the presidencies from Reagan through George W. Bush, until Obama’s clemency initiative.
Over the course of American history, the pardon process also grew more formalized and bureaucratized. By the mid-nineteenth century, presidents began to delegate to the attorney general the responsibility to screen and review pardon applications and make recommendations. Eventually the position of pardon clerk, later retitled pardon attorney, was established as part of an “administrative system … [that’s] made the unruly power part of the more general transformation of the justice system to an administrative state.” [228]
The Department of Justice’s formal role in this process remains in place today. Department regulations provide for the filing of a petition for clemency in the first instance with the pardon attorney. It is the function of this official to investigate fully the grounds for a potential pardon and for this purpose, he or she may draw upon the resources of the federal government, including the FBI. The pardon attorney’s recommendations are submitted to the deputy attorney general, who coordinates a further review by the attorney general and a final recommendation, in writing, to the president. Consistent with the core rationales for the granting of clemency, the regulations identify a range of grounds for a favorable pardon recommendation, such as the severity of the sentence, illness, cooperation with law enforcement and other investigations, or other “equitable factors.”
The role of the Justice Department has had the effect of “steering most clemency suitors away from the president’s door.” [229] The general agreement on the basis for pardons, and this system within the Justice Department for administering them, significantly reduced the potential for controversy about how the president exercises this constitutional authority. Presidents are, of course, free to adjust the priorities and standards that the department should follow in considering pardon recommendations. But it has well served presidents and their staffs to be able to direct petitioners to a process outside the White House and to affirm the application of a uniform set of standards for the consideration of pardons. If the reliance on the Office of the Pardon Attorney does not quite rise to the level of a “norm,” it is at least a general expectation. Presidents who have circumvented this process have been certain to face questions.
Recent Pardon Controversies
In the decades before the Reagan administration, and with the dramatic exception of Gerald Ford’s pardon of Richard Nixon, pardons and commutations had become a “routine and relatively low-key activity of the presidency that took place largely unnoticed.” [230] Since the 1990s, three administrations prior to the Trump administration have been rocked by charges that presidents used the pardon power to serve predominantly political and personal self-interest.
Iran-Contra
The Iran-Contra scandal involved a secret arms deal with Iran in 1985, the proceeds of which were used to fund arms for the contras in Nicaragua in contravention of a congressional ban. As George H.W. Bush was leaving office, he pardoned former Secretary of Defense Caspar Weinberger and five senior national security officials who had been convicted or indicted for perjury and obstruction of justice as a result of an investigation by an independent counsel.
Bush justified the pardons with typical reasons: the long periods of distinguished service of the defendants, family illness and old age that favored merciful consideration, and judgments by officials acting in good faith under the pressure of a Cold War. Bush also challenged the indictments and convictions on the ground that they represented a “criminalization of policy differences.” [231] He contended that the independent counsel had injected himself and the criminal justice process into a dispute between Congress and the executive over their respective authorities in major matters of national security. But critics (including the independent counsel) charged that Bush’s pardons shielded his administration, his aides, and possibly himself from accountability for what the independent counsel deemed to be criminal offenses. Bush left office the month following the pardons, and the controversy died down without congressional inquiry.
The Clinton Pardons
Pardon controversies from Bill Clinton’s presidency also raised the specter of improper motives. One controversial pardon involved Clinton’s 1999 grant of clemency to sixteen members of the FALN, a Puerto Rican nationalist organization, who had been convicted for involvement in bombings and other violence in pursuit of the goal of Puerto Rican independence. The clemency came with a condition that the pardoned FALN members must renounce acts of violence. Critics alleged that Clinton was motivated by politics, since his administration yielded to entreaties from Puerto Rican interest groups whose support would be useful to the looming Senate campaign of First Lady Hillary Clinton and the likely presidential quest of his vice president, Al Gore. Some evidence of political pressure surfaced when internal administration emails became public, but many distinguished figures supported clemency as well.
In a letter to Congress, Clinton claimed that “political considerations played no role in the process.” [232] He explained that the clemencies served to mitigate “unduly severe” sentences since the individuals in question had not been convicted of doing bodily harm to anyone even though they were members of an organization that embraced violence in the pursuit of its goals. Clinton acknowledged that his White House counsel rather than the Justice Department had managed the “process,” to the extent that there was one, and that the FBI and Justice Department officials had been opposed to clemency. Though Clinton made his case to Congress, he also asserted executive privilege in response to a congressional subpoena that sought information about his decision process. The White House argued that the pardon power was “not subject to legislative oversight.” [233] Congress responded with extraordinary actions. Congress passed by overwhelming majorities—311 to 41 in the House, and 95 to 2 in the Senate—resolutions denouncing the pardons.
The second Clinton administration controversy occurred when the president issued 140 pardons and commuted thirty-six prison sentences on his last day in office. Many of those pardoned had not applied for pardons and were not vetted by the FBI. The pardons included one for Clinton’s brother, who had been convicted of illegal drug use, and another for a witness who had refused to cooperate with the independent counsel investigation of the Clintons’ involvement in certain land deals in Arkansas prior to Bill Clinton’s presidency. The pardons that drew the most attention and criticism ended the criminal legal jeopardy of two fugitives from justice, Marc Rich and Pincus Green, who had fled prosecution for tax evasion. Press reports raised questions about whether the extraordinary pardons were rewards for financial support by the ex-wife of one of the two fugitives, who made large contributions to the Clinton presidential library and was a major Democratic Party donor.
One month after leaving office, Clinton answered critics with a written defense on the opinion page of the New York Times . Clinton noted that that the “exercise of executive clemency is inherently controversial” but acknowledged that “legitimate concerns have been raised” about the Rich and Green pardons. [234] He denied that the pardons were influenced by political contributions or contributions to the Clinton library. He expressed doubt that the law had been applied correctly in the Rich and Green prosecutions and noted that the “case for the pardons was reviewed and advocated” by his former White House counsel and three “distinguished” Republican attorneys. He also cited “foreign policy reasons” for his actions, which were the favorable views of “present and former high-ranking Israeli officials” who credited Rich with charitable work in Israel and contributions to the Palestinian-Israeli peace process. All in all, he concluded, his “pardon decision was in the best interests of justice,” especially since he had conditioned them on the willingness of Rich and Green to waive defenses to any related civil charges the government might bring.
One striking feature of this episode is the investigation undertaken by the U.S. Attorney’s Office for the Southern District of New York into illegal acts that may been committed in connection with the issuance of the pardons. According to press reports, the investigation centered on the possible “sale” of pardons, through the use of campaign contributions to induce the president to grant them, or any misrepresentations made on behalf the pardon seekers. The U.S. attorney at the time, James Comey, “did not find sufficient evidence to bring any charges and closed the case.” [235] The political controversy did not end quickly. Congress held hearings. Senior Clinton administration officials, including the former deputy attorney general, Eric Holder, and two former White House counsels, testified about the advice they had given to the president on the eleventh-hour pardons. A number of these officials detailed their opposition to the pardons and described a White House—directed scramble to issue the pardons before the president’s departure from office.
George W. Bush and the Libby Commutation
President George W. Bush commuted the sentence of Vice President Richard Cheney’s former chief of staff, I. Lewis “Scooter” Libby. Libby had been convicted by Special Counsel Patrick Fitzgerald of lying to a grand jury and making false statements to the FBI in the course of Fitzgerald’s investigation into the leak of the identity of a CIA officer. Bush’s commutation meant that Libby’s conviction stood and Libby had to serve a two-year probationary period and pay a $250,000 fine. But he served no jail time.
Bush explained his commutation as a response to a sentence that he viewed as “excessive.” [236] Many commentators believed this was a plausible contention since before Libby’s false statements to the grand jury or the FBI that had prompted his conviction, the prosecutor had determined that Libby was not the one who revealed the intelligence officer’s identity. The lies for which Libby was convicted thus were not intended to protect him from discovery as the original source of the leak. And prosecutors did not conclude that Libby violated the federal law prohibiting disclosure of an intelligence officer’s identity during his conversations with reporters on the subject.
But the Libby commutation also featured allegations of self-interested motive. The CIA officer whose name was leaked to the press was the wife of a former ambassador, Joseph Wilson. Wilson had alleged publicly that in making the case for the Iraq war, the Bush administration had fabricated a claim about that government’s quest for the development of nuclear weapons. The administration responded with heated denials, but critics charged that Libby had arranged the leak on behalf of Cheney as an act of retribution against Wilson. Cheney pressed Bush hard for a full pardon on the reported ground that “[w]e don’t want to leave anyone on the battlefield.” [237] The commutation was thus seen by some as a political move in the large domestic “war” over the charges of lying about the Iraq invasion. Many also believed that the commutation was a reward for Libby bearing the full consequences of the prosecution and sparing the vice president. There was evidence in the accounts of other witnesses that prosecutors were keenly interested in Cheney’s direct personal role in the matter.
More broadly, the Libby commutation occurred in an intensely political setting—a national debate about the Bush administration’s rationale for going to war in Iraq. As in other arguably self-serving cases of this kind, the president kept within the White House the decision on whether and how to pardon Libby or commute his sentence. The vice president was Libby’s chief advocate, the Justice Department’s Office of the Pardon Attorney was not consulted, and the process set up by regulation for the review of pardons was not followed.
The Trump Era
A White House official reportedly stated that Trump was “obsessed” with his power to grant pardons. [238] It is, apparently, the president’s “favorite thing” to talk about. He has turned to Twitter to announce pardons and once declared that he had the “absolute right to PARDON myself.” [239]
Through July 15, 2020, Trump had issued thirty-six pardons or commutations that in the aggregate were a significant break from past presidential practice. First, of Trump’s thirty-six pardons and commutations, an extraordinarily high 86 percent (31 out of 36) were self-serving in the sense of advancing a Trump political agenda item, or reflecting a personal connection to Trump, or involving someone Trump saw on television (usually on Fox), or concerning a celebrity he admired. [240] Prior presidents had issued self-serving pardons, some of which we described earlier. But none did so on anything approaching the systemic scale of Trump. Second, and relatedly, Trump rarely used the pardon attorney process in the Justice Department. Again, other presidents had sometimes skirted the pardon attorney. But Trump did so almost all the time. Based on public records, only five of the thirty-six cases—the five that lacked a personal or political connection to Trump—went through the Justice Department system. Unsurprisingly, those five people, but not the other thirty-one, appear to have been recommended for clemency by the pardon attorney.
A focus on some notable cases makes clear the political element in Trump’s pardon practice. These are pardons or commutations that Trump had reason to believe would be consistent with his political messaging or lines of attack on political opponents, and those that are attractive to his “base.” In August 2017, he pardoned the former sheriff of Maricopa County, Joe Arpaio, who was convicted of contempt of court for defying a federal court injunction against the profiling of Hispanics in an aggressive campaign to ferret out illegal immigration. Trump engaged in a singular act of showmanship in teasing out his intent to pardon Arpaio. He suggested the possibility during a Fox News interview and then again at one of his political rallies, in Phoenix, Arizona. He then announced the pardon on Twitter, applauding Arpaio for being a “patriot” and keeping Arizona “safe!” [241]
It was not only in the political stagecraft around the Arpaio pardon that Trump’s approach to the pardon power is distinctive. Trump did not claim that Arpaio’s conviction for contempt was a miscarriage of injustice, or that the injunction against his unconstitutional law enforcement strategies was legally defective. A critical assessment of the legal process, or an initiative for legal reform, played no part in his public justification. The White House stated that Arpaio was “worthy” of a pardon due to his life in public service. But Trump was attracted to Arpaio’s ardor in pursuing a goal—an all-out attack on illegal immigration—that was central to Trump’s campaign and governing agenda. Trump was affirming in dramatic fashion his own bona fides on the issue. Nor could he be viewed as falling back on a “public welfare” argument that a pardon was required to suspend the normal operation of the legal system so that political and social divisions could be healed in the larger public interest. Trump was celebrating defiance of the law on a deeply divisive issue.
Trump’s pardon of Arpaio was an intervention in an ongoing case, but he also exercised the power in older cases that had become causes célèbres in some Republican circles. He pardoned Scooter Libby with the explanation that “I don't know Mr. Libby, but for years I have heard that he has been treated unfairly.” [242] Some critics were concerned that in the middle of the Mueller investigation Trump was using the pardon to send the message that those who were loyal, as some suspected Libby had been to Vice President Cheney, could expect consideration of clemency. But it is also possible that he was merely looking to redeem long-standing conservative objections to Libby’s conviction and frustration over Bush’s unwillingness to pardon him fully. Trump could demonstrate that, unlike Bush, he was not prepared to leave Libby “on the battlefield.”
A similar dynamic played out in Trump’s pardon of conservative commentator Dinesh D’Souza, who pleaded guilty in 2014 to making illegal Senate campaign contributions. At the time of his pardon, D’Souza was serving a five-year probationary period. In May 2018, Trump announced by tweet his intention to issue the pardon that very day: “Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government.” [243] The White House later stated that Trump believed D’Souza was the “victim of selective prosecution for violations of campaign finance laws” and that he “accepted responsibility for his actions.” [244] And Trump explained further: “[D’Souza] should have [faced] a quick minor fine, like everybody else with the election stuff…What they did to him was horrible.” [245] In this case, as in other controversial ones, Trump did not work through the Office of the Pardon Attorney. Justice Department regulations would have excluded D’Souza from consideration for a pardon because he had not completed his probation.
The D’Souza pardon was seen by many commentators to serve the political aims of playing to the conservative base and tweaking political foes. Prior to prosecution, D’Souza had produced two films—2016: Obama’s America and Hillary’s America —that were very critical of Trump’s predecessor and his 2016 presidential opponent. D’Souza and his supporters argued that his prosecution was itself political payback for the first film. D’Souza was prosecuted by the Office of the U.S. Attorney for the Southern District of New York, which at the time was headed by Preet Bharara. Trump had fired Bharara in 2017, and by the time of the pardon, Bharara was a vocal Trump critic. The pardon was widely praised in conservative circles. “Bravo! @realDonaldTrump,” tweeted Sen. Ted Cruz. “Dinesh was the subject of a political prosecution, brazenly targeted by the Obama administration bc [sic] of his political views. … This is Justice.” [246] The pardon was widely decried as well. Trump has transformed the pardon power into an “everyday tool of culture war,” said David Graham in The Atlantic . “As with so many of Trump’s maneuvers, this is entirely within the legal bounds of his power but still largely outside the realm of propriety and precedent.” [247]
When Trump pardoned Conrad Black, convicted of illegally diverting money from stockholders to himself, it did not escape notice that Black was a strong supporter who had authored a book entitled Donald J. Trump: A President Like No Other . Political motivations appeared to inform the pardon of a strong supporter and former Republican member of the California State Assembly, Pat Nolan. Nolan had been caught up in an FBI bribery sting and convicted of using his political office to solicit campaign contributions, and he had served his twenty-six-month sentence by the time the pardon came. The White House explained the pardon mainly on the basis of Nolan’s post-prison work on criminal justice reform, victim’s rights, and religious freedom. [248] But the pardon had come after a conservative magazine, The American Spectator , had urged Trump on, noting that Nolan “has advised Jared Kushner on crime, punishment, and reform,” and linking what it described as the dishonest Justice Department investigation to a supposedly broken Justice Department pardon recommendation process and alleged FBI corruption related to Trump himself. [249]
Trump also used a pardon of former Illinois Gov. Rod Blagojevich to send a political message. Blagojevich, a Democrat, had been convicted of several crimes for extorting personal benefits, including campaign contributions, in return for an appointment to the Senate seat vacated by Barack Obama upon his election to the presidency. Trump became acquainted with Blagojevich’s cause when the convicted governor, still pursuing an appeal, appeared on a program that Trump hosted, Celebrity Apprentice, where Trump praised him just before firing him. Once Trump became president, Blagojevich’s wife took to the Fox News channel to hint that her husband was the victim of a political prosecution. Trump pardoned Blagojevich in February 2020, citing a “ridiculous sentence.” [250] But Trump also made the political point that Blagojevich was prosecuted “by the same people—Comey, Fitzpatrick, the same group.” [251] Trump was referring to James Comey, the former FBI director whom he fired and who subsequently successfully induced the appointment of a special counsel investigation into the Russia matter, and Patrick Fitzgerald (not Fitzpatrick), the special counsel in the Libby prosecution and Comey’s attorney following his dismissal by Trump.
Trump’s most corrosive exercise of the pardon power, however, was less about politics and more about personal legal interest. This was clearest in the commutation of the sentence of Roger Stone. Trump had told Mueller in writing that he did not recall discussing WikiLeaks with Stone, even though several witnesses told Mueller that he did. Had Stone testified to direct conversations with the president about WikiLeaks and its plan for leaking the stolen emails, it would have been devastating to Trump. In the two weeks after Trump gave his testimony, Trump publicly criticized “flipping,” described Stone as “very brave” for not cooperating with Mueller, and praised Stone’s “guts” in not cooperating with Mueller. [252] Mueller concluded that these and other statements by Trump “support the inference that the President intended to communicate a message that witnesses could be rewarded for refusing to provide testimony adverse to the President.” [253] Once Stone was indicted, Trump more than once stated that he believed that Stone was treated unfairly. In a clear reference to clemency, he publicly signaled that he possessed “great powers” that he could exercise depending on how the process played out. [254] And then, of course, he commuted Stone’s sentence rather than let him go to jail.
The president and his lawyers have clearly been considering pardons for others who were caught up in investigations of the president. Mueller discovered that the president’s personal attorney, Michael Cohen, discussed with the president’s personal counsel a possible pardon of crimes for which he was investigated and later convicted. Trump’s private attorney, Rudy Giuliani, informed the New York Daily News in an interview that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” [255] Trump has fallen out with Cohen and likely won’t pardon him. But he has hinted publicly—in language like he used with reference to Stone—that he might provide convicted former campaign manager Paul Manafort with a pardon or commutation. Trump stated that he would not “take … off the table,” and would decide when “ready” whether to issue, a pardon for Manafort. [256]
Reform
The pardon power is a broad one, and no reform short of a constitutional amendment to chop down the power significantly can stop a president from using the power, as Trump has, to score political points, meet demands from a political constituency, or routinely make clemency decisions on the basis of personal relationships, likes and dislikes, and entreaties. Many constitutional amendments to the pardon power have been proposed over the years. An amendment would be a heavy lift but might be justified on a targeted basis to ban, for example, self-pardons—a topic, that, as we explain later in this chapter, can also be regulated by statute. But in general, we do not favor constitutional reform. The pardon power is an important one to preserve for purposes of mercy and reconciliation, even if it is subject to abuse. An amendment to restrict this avenue of relief from errors and excesses in the criminal justice system seems especially fraught, and ill timed, given the intense national attention focused on the system’s serious failings, including the pervasive problem of racial bias and broad inequality in access to legal services. Yet beyond narrow and clearly defined limitations like the one on self-pardons, it is unclear what types of reform suitable for a constitutional amendment would preserve the just uses of this power while preventing its abuse.
Another reason we do not support constitutional reform is that statutory reform is capable of addressing the worst elements of abuse. The main concern that our proposals below address is that unbounded self-interestedness in the issuance of pardons can easily move into the territory of outright corruption. By prohibiting the most corrupt abuses, Congress can end doubt about the breadth of the “absolute” pardon power. It can also send a signal more generally that presidents would be unwise to regard the decision to pardon as a law-free zone that a president can occupy safely in consultation with only West Wing aides. This in turn can have a salutary impact on the operation of executive branch norms, especially with regard to officials subordinate to the president whom he needs to execute a pardon.
Bribery
A pardon or commutation is “absolute” for the beneficiary for the crime pardoned. But a pardon does not afford the president, as the grantor, immunity from commission of a crime in connection with granting a pardon. Nor does it cover any such separate crime committed by the grantee in seeking or accepting the pardon as part of a corrupt bargain.
Congress could, for example, make it a crime for the president and the grantee to engage in a bribery scheme in which the grantee makes a personal payment, a campaign contribution, or an offer of something else of value as part of an explicit quid pro quo arrangement. The president’s subsequent pardon or commutation would remain fully in effect for the offense pardoned, in accordance with the Pardon Clause. But the anti-bribery law would apply to the independent criminal acts committed by the president and the grantee in the course of reaching an illegal agreement about the terms on which a pardon would be granted.
The current anti-bribery statute, 18 U.S.C. § 201, would clearly apply to someone who offered a bribe to a president in exchange for a pardon. There is a good argument that the anti-bribery statute also prohibits the president from offering or granting a pardon in exchange for a payment or something else “of value.” The executive branch has for many statutes required a “plain statement” before the statute, especially a criminal one, is deemed to apply to the president. While the anti-bribery statute has no such plain statement, the Office of Legal Counsel has twice stated that the anti-bribery law is an exception to this plain statement rule in this context. [257] The plain statement rule is designed to protect the president from undue intrusion by Congress, the Office of Legal Counsel explained. But the bribery statute “raises no separation of powers questions were it to be applied to the President” because the Constitution “confers no power in the President to receive bribes.” [258] As a result, “the Department of Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President.”
That said, the application of the anti-bribery statute to the president is not certain, especially since it defines a covered “public official” as a “Member of Congress, Delegate, or Resident Commissioner, … or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof.” [259] In the absence of a plain statement, it is possible that a court might would rule that the president is not an “officer or employee” of the United States. There should be no doubt on this matter. We thus propose that Congress make clear that the president is a “public official” within the meaning of the bribery statute. Congress should also amend the statute’s prohibition on a public official seeking or accepting a bribe “in return for being influenced in the performance of an official act” to make clear that “official act” includes a pardon. [260]
These changes are entirely consistent with the Justice Department’s view of presidential prerogative and would clearly criminalize pardons as part of a bribery scheme. The amended bribery statute would not prohibit a president from pardoning a campaign supporter to reward his or her loyalty, without regard to the merits. Such a pardon may well be unworthy or controversial, but it would not be a crime for the president to use the pardon power in this fashion. Under the amended statute (and quite possibly under the current statute), the same pardon of a supporter would give rise to legal jeopardy if evidence surfaced that the president had entered into a corrupt agreement to grant the pardon in return for political contributions.
Obstruction of Justice
On the same principle that a pardon does not afford the president immunity from commission of an independent crime by granting a pardon, we also believe that Congress can and should expressly criminalize a pardon offered in exchange for the recipient’s false or misleading testimony in a judicial or other official proceeding.
There is a good argument that an extant obstruction of justice statute, 18 U.S.C. § 1503, already prohibits a president from using a pardon in this way. Attorney General William Barr, who possesses a broad view of presidential prerogatives, stated during his confirmation hearing that “if a pardon was a quid pro quo to altering testimony, then that would definitely implicate an obstruction statute.” [261] Earlier, in a June 2018 memorandum on obstruction of justice that Barr wrote prior to becoming attorney general, he emphasized that a president under current law “can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function” or “induc[ing] a witness to change testimony.” [262] Enforcing an obstruction of justice statute against a president in this context did not impinge on the president’s “complete” Article II authority over law enforcement, Barr explained, which does not extend to “commission of any of these inherently wrongful, subversive acts.” The same logic would apply to the pardon power.
And yet just as in the case of bribery, the plain statement rule makes the prohibition on the use of pardons to obstruct justice needlessly uncertain. We thus propose that Congress clarify the issue by amending the bribery statute in two ways. First, consistent with the Barr analysis and as we propose in addressing bribery per se, Congress should make clear that the criminal prohibition of the bribery statute applies to the president and vice president. And, second, Congress should make clear that a pardon in exchange for false or misleading testimony would violate that statute. The statute at 18 U.S.C. § 201(b)(3) already makes it a crime to “corruptly give[], offer[], or promise[] anything of value to any person … with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding” (emphasis added). The statute could achieve the purposes sketched above if Congress simply defined “anything of value” for these purposes to include a presidential pardon or commutation.
Such a statute would cover the possible case of Trump pardoning Stone in exchange for his refusal to cooperate with Mueller. There is little doubt that the bribery statute, especially as amended with the plain statement we propose, would be implicated if the president had dangled a monetary inducement of “value” for Stone to keep silent about the alleged conversations with WikiLeaks. Assume, for example that, in denouncing “flipping” and praising Stone for his “guts,” the president had not implicitly referred to his “great [pardon] powers” but had stated instead: “I know Stone will be found innocent. He is a good friend and counselor, and I look forward to having him work with me in my GREAT businesses.” On its face, this statement would justify the opening of a criminal investigation into whether this constituted a “corrupt … offer … of anything of value” to influence specific testimony in an ongoing criminal proceeding. The reform we propose would establish that the outcome would be the same—exposure to criminal liability—if the “thing of value” offered was a pardon or commutation.
Proving this crime might, of course, be difficult, depending on the allegations and facts of the particular case. But even so, we believe this reform would have an impact. It is unlikely that Trump would have made public statements like those about Stone with reference to “anything of value” other than a pardon or commutation. The risk of criminal liability for influencing witness testimony would have been too great. His lawyers would certainly have so advised him. But Trump appears to believe that his “absolute” pardon power immunizes him. For this reason, a president with this view of the scope of the power could, as Trump did, regularly and openly reassure Stone that his “guts” would be rewarded and that, as Trump tweeted a month before the commutation, Stone “can sleep well at night.” [263] A reform that brings the president and the exercise of the pardon power within the scope of the bribery statute would deter a president from pursuing any brazen scheme to use this power to induce a witness to lie, and would clearly authorize a criminal inquiry if he or she does.
There is a case to be made for an even broader prohibition. This would involve amending the obstruction of justice statute to criminalize pardons made in discrete contexts with the corrupt intent of influencing the due administration of law. Such a change would raise complex constitutional questions that we discuss fully in Chapter Eight in the context of special counsel investigations.
Self-Pardons
President Nixon reportedly considered pardoning himself but declined to do so. Trump is the first president to raise the possibility publicly, and it is easy to imagine him doing so before he leaves office.
The core worry about self-pardons is that a president can with the stroke of a pen avoid accountability under the law. A president who self-pardons remains subject to state laws, and the self-pardon would not relieve the president of other consequences, such as potential loss of a vocational license, including the license to practice law. Nonetheless it is no small matter, in a democracy committed to the proposition that no one is “above the law,” that a president might engage in bribery and extortion, subvert the federal criminal justice system, and then immunize himself or herself from liability for federal criminal offenses committed while in office.
Despite these concerns, whether the pardon power includes a power to self-pardon is unsettled. Neither constitutional text nor judicial opinions speak overtly to the issue, and scholars are sharply divided. [264] The Constitution does contain hints, but they cut in many directions. The express limits on the pardon power (to federal crimes and excluding impeachment) might imply that there are no other limits, and the exception for impeachment might imply, as Andrew McCarthy noted, that “the Framers understood they were permitting the president to pardon himself” for crimes. [265] That said, Article I of the Constitution states that a person convicted after impeachment “shall nevertheless” be subject to a subsequent criminal trial; the Article II specification that the president has power to “grant [a] pardon” might imply a bilateral relationship that is absent from self-pardons; and the Take Care Clause might preclude the president from excluding himself or herself from the reach of law enforcement. This latter idea might have been what the Office of Legal Counsel meant when in 1974 it wrote without further explanation that self-pardons would “seem” to be disallowed “[u]nder the fundamental rule that no one may be a judge in his own case.” [266]
In the face of this uncertainty, Congress’s constitutional judgment can matter a lot, both in informing subsequent judicial review of a self-pardon and in giving a president pause about issuing one in the first place. For this reason, and for the reason stated by the Office of Legal Counsel in 1974, we propose that Congress make clear that a self-pardon is not authorized by Article II and has no force or effect.
As we explain fully in Appendix B, we would accomplish this in a statute with two parts. First, Congress would state its constitutional position in a preamble. The preamble would cite the Pardon Clause, the Take Care Clause, and the Impeachment Clause’s express reservation of criminal liability for a president impeached and convicted who upon leaving office “shall … be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” It would also take note of the Executive Branch’s position against self-pardons, and express Congress’s independent constitutional judgment against them. Second, Congress would affirmatively prohibit the use of pardons in federal court as follows: “The President’s grant of a pardon to himself or herself shall not be accepted by any federal court of the United States, nor deprive any such court of jurisdiction over any criminal or civil matter, nor operate to confer on the President any legal immunity from investigation or prosecution.” [267]