On the front page of today’s Washington Post, Carol D. Leonnig, Ashley Parker, Rosalind S. Helderman, and Tom Hamburger report that the Trump administration is currently considering a range of options to control and/or block Special Counsel Robert S. Mueller III’s Russia investigation, including the p-word—pardons. On Wednesday, Andy Wright walked through some of the pardon scenarios, and folks should really start with his post. But I wanted to take a shot at framing the pardon issue around five distinct questions, many of which are being asked by folks reacting to today’s Post story. Below the fold, I ask (and try to answer) the questions. 

Question 1: Can the President Pardon Himself?

For obvious reasons, this is the most interesting of the questions (albeit perhaps not the most important). In a cryptic memo written in August 1974, the Justice Department’s Office of Legal Counsel (OLC) concluded that the answer was “no,” as a corollary to the principle that no man can be a judge in his own case. I’m not actually sure that logic holds, but it may not matter: OLC is also of the view that it would be unconstitutional to prosecute a sitting President, and I’m hard-pressed to imagine a scenario in which a future President would really want to prosecute one of his or her predecessors. So President Trump may not have the constitutional authority to pardon himself, but in practical terms, that may not matter, given the constitutional and political obstacles to any criminal prosecution of a current (or past) President. (There is also the Twenty-Fifth Amendment dance to which Andy alluded on Wednesday, i.e., where the President temporarily steps aside, is pardoned by the Vice President qua Acting President, and then resumes office.) Of course, this has nothing to do with impeachment proceedings, in which a pardon is and would be wholly irrelevant; the pardon would, at most, only be a shield against a federal criminal prosecution, or a sword against an existing conviction.

Question 2: Can a Pardon Cover Future Crimes?

As Andy noted on Wednesday, “A president can prospectively pardon individuals for crimes that have occurred but have not been charged.” Indeed, the Supreme Court basically said as much in Ex parte Garland, noting that “The [pardon] power … extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” The harder question is whether the pardon power can also extend to crimes that have not yet been committed. Formally, I think the answer has to be “no.” It cannot be the case that the President can provide someone with a forward-looking shield against any and all criminal liability in perpetuity—and the constitutional argument to that effect turns on the meaning of the word “pardon.”

The tricky issue, though, is how the effectiveness of such a pardon could be tested. Imagine, for example, if President Trump sought to pardon Jared Kushner for any and all crimes he has committed in the past or future, would a future prosecutor seek to challenge that pardon by pursuing an indictment (and then, presumably, litigating the pardon as part of the criminal case)? I’d have to think that any other effort to litigate the pardon would run into serious justiciability concerns, so everything would rise and fall on whether such a prosecution would be pursued—once again, with the legal issues taking a backseat to political considerations. So even though I think most would agree that pardons cannot cover future conduct, the only way that issue is likely to ever be settled is if (1) such a pardon is issued; (2) a prosecutor brings an indictment putatively implicating the pardon; and (3) courts in such a case hold that the pardon is constitutionally ineffective.

Question 3: Can a Pardon Cover Offenses Against State Law?

This one turns out to be easy: No. The President’s pardon power extends only to offenses against federal law; questions of state law are up to each state’s constitution. At the same time, it’s hard to see which state criminal laws are implicated by the current investigation, since questions of foreign affairs, foreign agent registration, foreign financial interference, obstructing federal investigations, making false statements to federal investigators, and so on are, for obvious reasons, the exclusive province of federal law. There’s also the relevant point that the “state” with the most obvious criminal jurisdiction over the principals here is the District of Columbia, which is under federal, not state, sovereignty—such that the relevant pardon power for violations of the D.C. Code is, indeed, the President’s power under Article II of the U.S. Constitution.

Question 4: Can a Pardon Be Invalid Because It Violates Another Constitutional Provision or Criminal Statute?

This is perhaps the trickiest question. Suppose the President pardons “any Catholic” who has committed a crime, or pardons an individual in exchange for compensation (a textbook violation of the federal bribery statute). What happens then? It seems to me that the pardon itself in both cases is still valid, so long as it’s directed to a prior violation of a federal law. But the exercise of the pardon power might be unlawful, which, in the bribery example, could subject the involved individuals to criminal prosecution, and, in the Catholic example, could provoke civil litigation under the First and Fifth Amendments. In other words, the pardon itself is absolute, but that doesn’t mean that there are no legal constraints on how the pardon power is exercised. Even in exercising the pardon power, the President is still bound by the Constitution and applicable federal statutes.

Question 5: Can a Future President “Un-Pardon” Someone Who Has Been Pardoned?

Finally, suppose President Trump issues a series of very controversial pardons that one of his successors seeks to undo. Is there such a thing as an “un-pardon”? This one, too, is easy: No. A pardon that is valid when issued is valid for all time. Indeed, one of the most famous cases in the Supreme Court’s Federal Courts canon (albeit not a famous case to anyone else) is United States v. Klein, an 1872 case striking down an Act of Congress that, among other things, had attempted to minimize the substantive impact of presidential pardons of former Confederate soldiers and civil servants (and to prevent the courts from reviewing the impact of such a legislative move). There’s actually a case on the Supreme Court’s docket for this fall (in which I just filed an amicus brief) that’s all about Klein—albeit not the pardon aspect of it. So even if a future President wanted to try to reverse a valid pardon issued by his or her predecessor, I think it’s a no-brainer that the original pardon would remain valid.

*                                              *                                              *

What the above hopefully makes clear is that the pardon power is pretty broad, and that even substantively invalid pardons may be effective in practice because they can and will be difficult to litigate. Instead, the real implications for uses (and abuses) of the pardon power are, as they have always been, political. Pardons can’t interfere with congressional investigations (and may even help them, as Andy explains), and pardons can’t get in the way of impeachment proceedings (in some cases, perceived abuses of the pardon power might accelerate the case for impeachment). So, once again, the real question is how Congress would respond to the potential scenarios outlined in today’s Post story. Given the record to date, I’m not holding my breath. But maybe a series of optically (if not legally) problematic pardons would change that narrative?

Photo Credit: Pool / Getty Images