Is the Pardon Power Unlimited?

Originally published on February 28, 2020; republished without change on July 11, 2020

Does Donald Trump have an unlimited power to pardon? Now that his longtime associate Roger Stone has been sentenced—after much controversy over the Justice Department’s overruling of the original sentencing recommendation made by career prosecutors—could Trump pardon him without consequence, as he recently pardoned or commuted the sentences of Rod Blagojevich, Bernie Kerik, Michael Milken, and Sheriff Joe Arpaio? Could Trump also pardon with impunity former Trump Campaign Chair Paul Manafort and former National Security Advisor Michael Flynn? And if, in order not to “turn off” voters in swing states, Trump were to wait until after he is re-elected to pardon Stone, Manafort, and/or Flynn, would our constitutional system be helpless to respond?

The short answer is no. As a matter of constitutional law, the president and his aides should not doubt three things. First, even if Trump is re-elected, pardoning Stone, Manafort, and/or Flynn would constitute impeachable conduct — the equivalent of Trump nullifying the rule of law for his own cronies – that would be sufficient to trigger a new round of impeachment and removal. Second, such pardons could independently form the basis for criminal charges of obstruction of justice, in both state and federal courts, after Trump leaves office. Third, while no president has yet been impeached or convicted for abusing the pardon power, we are clearly living in an unprecedented constitutional moment. If Trump is re-elected, yet continues to abuse the pardon power, political weariness about impeachment should not discourage those committed to the rule of law from invoking such pardons to demand accountability.

When Pardons Become Impeachable

The Framers well understood that pardons are not a presidential plaything to be granted at the president’s whim to whomever he favors. For that reason, the granting of presidential pardons has historically been governed by both substantive and procedural standards.

In Federalist 74, Alexander Hamilton envisioned that the exercise of the pardon power would be guided by “[h]umanity and good policy,” “scrupulousness and caution,” as well as “the dread of being accused of weakness or connivance.” In Biddle v. Perovich, the Supreme Court clarified that a “pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Ex Parte Grossman further specified that “[o]ur Constitution confers this discretion [of the pardon power] on the highest officer in the nation in confidence that he will not abuse it. … To exercise [the pardon power] to the extent of destroying the deterrent effect of judicial punishment would be to pervert it ….” (emphasis added).

To guide the procedural exercise of the president’s pardoning discretion, the Justice Department’s pardon advisory program, administered by its Pardon Attorney, has long published standards for consideration of clemency petitions. Most states similarly follow pardon procedures like Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power, processing official information and considering whether pardons serve a broader public purpose.

Under Trump’s administration, by contrast, pardons have increasingly been issued without articulable standards or indicia of process. In granting pardons, Trump now entirely bypasses the Justice Department’s Office of the Pardon Attorney. As former U.S. Pardon Attorney Margaret Colgate Love has noted: “Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy. This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.” When Trump engaged in a “clemency binge” on Feb. 18, 2020 toward 11 convicts who all either had inside personal connections to him or who were promoted on Fox News, Love added: “There is now no longer any pretense of regularity … The president seems proud to declare that he makes his own decisions without relying on any official source of advice, but acts on the recommendation of friends, colleagues and political allies.”

By circumventing the traditional pardon route, Trump has created a new environment where people vie for his attention through the media, in hopes that he will develop an interest in their case. Joe Arpaio’s lawyer put it succinctly: “[t]he most honest answer I can give to those who ask me how to get a pardon from this president is this: Take your case to the media, to Fox News.”

The Founding Fathers well understood that impeachment must be the ultimate check against substantive or procedural abuses of the pardon power. Responding to George Mason’s concerns that the president’s pardon powers could allow him to “frequently pardon crimes that were advised by himself,” James Madison explained when impeachment should check such abuses: “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him.” (emphasis added)

Justice Joseph Story elaborated that, because the president has: “every temptation to abuse [the pardon power] in cases of political and official offense by persons in the public service … [t]he constitution has, therefore, wisely interposed this check [of impeachment] upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment” (§ 1495 here). While no president has been impeached for abusing the pardon power, when the House of Representatives first attempted to impeach President Andrew Johnson in 1867, one of the charges outlined by Representative James Ashley and recommended by the House Judiciary Committee was the president’s “corruptly us[ing] the pardoning power.”

In moving to impeach Johnson, the majority of the committee “specif[ied]”, inter alia:

That [Johnson] has abused the pardoning power conferred on him by the Constitution, to the great detriment of the public, in releasing, pending the condition of war, the most active and formidable of the leaders of the rebellion, with a view to the restoration of their property and means of influence, … [And] That [Johnson] has further abused this power in the wholesale pardon, in a single instance, of 193 deserters, with restoration of their justly forfeited claims upon the Government for arrears of pay, without proper inquiry or sufficient evidence.

From this history, commentators such as Cass Sunstein have gleaned a constitutional standard: that impeachment would be appropriate when the president abuses the pardon power to pardon individuals for committing crimes that the president “advised,” or wrongdoing with whom the president is “connected, in any suspicious manner.” Frank Bowman has argued that an impeachment based on pardons alone would need to involve “strong evidence of indisputably improper motives, most likely relating to personal or political self-protection [i.e. obstruction of justice], shielding of corrupt family or associates, or pecuniary corruption.

It does not matter whether the president’s pardons constitute a crime. As Professor Bobbitt has noted, “An impeachable offense is one that puts the Constitution in jeopardy, whether or not that act is a crime.” Republican Senator Mitt Romney made this point explicit in voting to remove Trump from office based on his conduct before February 2020: “The historic meaning of the words ‘high crimes and misdemeanors,’ the writings of the Founders and my own reasoned judgement convince me that a president can indeed commit acts against the public trust that are so egregious that while they are not statutory crimes, they would demand removal from office. To maintain that the lack of a codified and comprehensive list of all the outrageous acts that a president might conceivably commit renders Congress powerless to remove a president defies reason.”

But evidence of a criminal conspiracy to pardon a presidential crony could certainly form the basis for an article of impeachment. And a conspiracy involving a president that directly impinged on the separation of powers, such as conspiracy to obstruct Congress, would also constitute the type of “truly substantial constitutional crime” that gives rise to impeachability.  This would be particularly true if it could be shown that the president abused the pardon power to pardon individuals for committing wrongdoing with whom the president is “connected, in any suspicious manner.” And as Bowman argues, the case for impeachment would be strongest in “a situation like that of President Nixon in which a proposed use of the pardon authority was part of a larger pattern of impeachable behavior.”

Of course, in Trump’s case, such a “larger pattern” would be supported by the fact that the president’s abuse of power and obstruction of justice have already formed the basis for impeachment by the House during his first term. Continued presidential misconduct along the same lines would confirm that those senators who thought that the president had “learned his lesson,” or would be deterred by impeachment from future misdeeds had so miscalculated that going forward, removal would be the only means left to prevent the president from using his office to continue that pattern of abuse. 

When Pardons Become Criminal 

Although the Justice Department’s Office of Legal Counsel has famously and controversially opined that a sitting president may not be indicted for criminal conduct, presidential pardons are by no means exempt from criminal investigation. When President George H.W. Bush granted pardons to six Reagan administration officials who were criminally prosecuted for their involvement in the Iran-Contra affair, Iran-Contra Independent Counsel Lawrence Walsh vocally criticized the pardons for “undermin[ing] the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office–deliberately abusing the public trust without consequence.”

Similarly, when, in the last days of his presidency, Bill Clinton pardoned Marc Rich, a fugitive charged with tax evasion, racketeering, and fraud, the U.S. Attorney’s Office for the Southern District of New York and the Justice Department began a criminal bribery investigation into whether anyone “acting on behalf of Mr. Rich in effect sought to buy his pardon or obtain it by fraudulent misrepresentation.” Significantly, Rich’s pardon had “not been handled through standard channels for pardon requests,” and the prosecuting U.S. Attorney’s Office in Manhattan was neither consulted on the pardon, nor given any opportunity to object.

State pardons of gubernatorial cronies have similarly sparked criminal investigations. In the 1970s, the chairman of Tennessee’s Pardons and Paroles Board tried to stop Governor Ray Blanton from pardoning prisoners who had bribed the Blanton administration for their pardons—only for the chairman to be fired by Blanton (see here and here). An FBI investigation then led federal prosecutors to charge responsible state employees with extortion and conspiracy to sell pardons. State prosecutors would also continue to have prosecutorial authority under state law to pursue the president and/or his associates for obstruction of justice and business crimes that are not covered by issues raised by any parallel federal investigation.

In April 2019, more than 400 federal prosecutors jointly stated their belief that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel non-indictment policy, result in multiple felony charges for obstruction of justice. Their letter argued:

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include: The President’s efforts to fire Mueller and to falsify evidence about that effort; The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign. (emphasis added)

Moreover, after exhaustively reviewing the extensive evidence of obstruction of justice in the second volume of its report on the Russia Investigation (see here for a summary), the Mueller report famously states (p. 178, fn. 1091) that:

A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. … Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC [the Office of Legal Counsel] has recognized [in its 2000 opinion:] (‘Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office …’) (emphasis added)

In sum, as Sam Berger has argued on Just Security, “[b]ecause conspiracy is an ongoing crime, an obstructive pardon for actions related to a conspiracy involving the president would not eliminate legal liability. Either the pardon would be a continuation of the crime, and thus the pardon itself would be an invalid attempt to pardon actions that were ongoing, or the pardon would be a new conspiracy and thus a new crime—in either case, Trump and his accomplice or accomplices would still be subject to legal liability for conspiracy.” 

If Trump were to pardon Stone, Manafort, or Flynn, the criminal case for obstruction of justice would be strengthened by the fact that the president’s legal team previously floated pardons to such potential witnesses as Manafort and Flynn, referenced in both volumes I and II of the Mueller report. As the report notes, “many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view.” And contributing to this broader pattern of abuse of power and obstruction of justice would be Trump’s public, highly visible attempt to interfere with Stone’s sentencing, mere hours before Attorney General William Barr’s office took the extraordinary step of overruling the sentencing recommendation of career Justice Department prosecutors (7-9 years), instead recommending an unspecified shorter sentence, prompting four career prosecutors to withdraw from the case.

After Barr himself criticized Trump for his intervention, Trump tweeted that he, “as President,” has “the legal right” to intervene in a criminal case, and removed the nomination for a high Treasury position of Jesse Liu, who had been in charge of the U.S. Attorney’s Office prosecuting Stone. There seems little basis for Trump now to claim these events are unrelated or not part of an overall plan, particularly given that his own personal lawyer, Rudolph Giuliani, previously gave a series of interviews in which he raised the possibility of a pardon for Manafort, saying: “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons” (p. 124 here).

Is Accountability for Pardons Politically Possible? 

Of course, what may be legally possible can always be deemed politically difficult or unwise.  Americans are plainly weary of impeachment and will likely hesitate to try it again, even in a second Trump term. Even many of the president’s ardent Democratic opponents might argue that as a political matter, the Democrats should not dare to impeach for pre-reelection acts a president who has just been re-elected.

But before this political skepticism hardens into conventional wisdom, we should recognize how unique this constitutional moment is. Our nation has never before faced a situation like the current one: a first-term president has been impeached, but not removed, in the face of ample evidence of abuse of power and obstruction, yet not only shows no contrition, but seems emboldened to act even more unfettered after the failure of the Senate’s vote to remove him. 

Immediately after the Senate vote, Trump embarked on a purge of impeachment-related officials. Not only did he remove Lt. Col. Alexander Vindman, a key impeachment witness who provided details about Trump’s call with Ukrainian President Volodymyr Zelenskyy, but in a startling act of personal retribution, also removed from the Natonal Security Council staff Vindman’s twin brother, who was not involved in the impeachment. On the same day, Trump recalled from his post European Union Ambassador Gordon Sondland, who had testified during the House impeachment proceedings that there was a quid pro quo in Trump’s dealings with Ukraine.

And Trump’s emboldened belief that he can pardon anyone without consequence may be confirmed by new claims from former Congressman Dana Rohrabacher that he offered a pardon from Trump to Wikileaks founder Julian Assange if Assange could provide evidence that Russia was not behind the hacking of Democratic National Committee emails published by Wikileaks in 2016. Finally, in a under-noticed break from his adamant denials just weeks earlier, Trump baldly admitted the very basis for the original impeachment action: that he “use[d]” Giuliani as a personal lawyer to go dig up dirt on the Bidens in Ukraine, even as Barr confirmed that the Department of Justice was reviewing the information that Giuliani provided about the Bidens.

Should Trump squeak to re-election solely through the Electoral College—with an even greater minority in the popular vote than in 2016 and with uncertain aid from Russian electoral interference, as intelligence officials recently testified—it is unclear why the Democrats should tolerate another round of pardons of Stone, Manafort, or Flynn. Such acts would provide ample evidence to start a new round of impeachment proceedings based on renewed proof that a prior pattern of abuse of power and obstruction of justice continues.

Even if such efforts were successful, they would not overturn the results of a national election, given that Republican Vice President Mike Pence would become president. Instead, maintaining the threat of impeachment and prosecution for presidential abuse of the pardon power would maintain a deterrent against even more rampant misbehavior. The threat would provide a necessary political check on a president who seems uniquely determined to use his official position to reward his cronies and nullify the rule of law. And, as noted above, any new round of pardons would provide further fodder for either state or federal prosecutions of Trump for criminal obstruction of justice after he leaves office.

So let Trump be forewarned: don’t even think about pardoning Stone, Manafort, or Flynn. Whatever you may believe, the Constitution’s pardon power is not an unlimited, unaccountable power. The more you abuse it to nullify the rule of law for your own cronies, the more such misconduct can serve as the basis for post-presidential prosecutions or another round of impeachment. And this time, perhaps the impeachment road would end with your removal.

IMAGE: Roger Stone, former adviser to U.S. President Donald Trump, exits the E. Barrett Prettyman United States Courthouse on Feb. 20, 2020 in Washington, DC. Stone was sentenced to 40 months in prison for his convictions of witness tampering and lying to Congress. (Photo by Drew Angerer/Getty Images)

 

About the Author(s)

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13), Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001). Member of the editorial board of Just Security.

Rosa Hayes

JD candidate at Yale Law School (class of 2020)

Dana Khabbaz

JD candidate at Yale Law School (class of 2021)

Michael Loughlin

JD candidate at Yale Law School (class of 2021)

Nicole Ng

JD candidate at Yale Law School (class of 2022).

Ayoub Ouederni

JD student at Yale Law School, serving as a Forum editor on the Yale Law Journal and as a student participant in the Peter Gruber Rule of Law Clinic. Follow him on Twitter (@ayoubouederni)

Brandon Willmore

J.D. Candidate at Yale Law School (class of 2021). Follow him on Twitter (@bwillmore5)