President Donald Trump apparently holds the misguided belief that his pardon power is “absolute.” But while the pardon power is expansive in scope, that power is nevertheless constrained by the Constitution and federal criminal laws, including anti-bribery and obstruction laws. To a lesser extent, the pardon power has also been constrained by a historic abidance to its noble purpose—bestowing grace and mercy in the face of injustice—and past presidents’ general refusal to abuse the power as a tool for self-gain. However, when a president’s pardon potentially violates the law or otherwise constitutes an abuse of the power, both federal prosecutors and Congress can and should step in.
Consider a recent example. President Bill Clinton’s controversial use of pardons—famously dubbed Pardongate—demonstrates the crucial oversight role of both federal prosecutors and Congress in investigating and combatting unlawful uses of the pardon power both then and now. This article briefly sketches the history of Pardongate and offers lessons learned and recommendations to the Department of Justice and Congress for responding to President Trump’s abuse of pardons. But first we provide a brief overview of when pardons are unlawful or otherwise may constitute an abuse of the power.
Limits on the Pardon Power
In general, three categories of pardon abuses violate the law: (1) pardons that place the president above the law; (2) pardons that undermine the constitutional powers of another branch or the Bill of Rights; and (3) pardons that function as a bribe or to obstruct justice.
First, a president may abuse the pardon power by issuing a self-pardon, or a pardon of associates that would impede an investigation into himself or his interests and that would thus amount to a self-pardon. The pardon power must be understood within the context of the other Article II powers and responsibilities of the president. Two provisions—the Take Care Clause and the Oath Clause—require that the president act in the public interest, binding him to exercise fiduciary duties of loyalty and care to the common good. Both entrust the president with faithfully executing the law and bar him from betraying the public interest. Self-pardons (and similarly, self-protective pardons) would explicitly run afoul of these Article II provisions by allowing the president to wield the powers of his office not in service of the public but in service of himself. A self-pardon would also turn the president into a judge and jury in his own case where the president’s personal interests would prevent the impartial application of the law. As the Supreme Court has explained, “[O]ur system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case.” The pardon power does not alter this fundamental constitutional principle. Days before President Nixon’s resignation, the executive branch issued its own legal analysis that arrived at the same conclusion: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
Second, a president may also abuse the pardon power by using it to violate the constitutional rights of private litigants or to undermine the constitutional powers of the Judiciary or Congress. For example, were a president to issue pardons for a particular offense to all white people guilty of that offense but not to people of color, that would flagrantly violate the equal protection of the laws. As Justice Stevens once observed, “[N]o one would contend that a governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency.” Similarly, the president cannot lawfully use the pardon power to neuter another branch of government’s constitutional powers, such as the power of the courts to issue contempt orders or the power of Congress to conduct hearings and investigations.
Third, the offering or granting of pardons may violate generally applicable criminal laws, such as federal laws prohibiting bribery or obstruction of justice. For example, offering money or another thing of value in exchange for a pardon would constitute bribery under existing federal law. Likewise, promising a pardon to prevent a witness from cooperating with an investigation would constitute obstruction.
Both the Department of Justice and Congress have crucial roles to play in investigating and combatting pardons that violate these prohibitions. For example, federal prosecutors should investigate any pardons that could constitute bribery or obstruction of justice and zealously prosecute those cases if the evidence warrants. Similarly, Congress can use its broad oversight powers not only to investigate potentially illegal pardons but also to deter pardons that—while not illegal—substantially stray from the underlying justice-seeking purposes of the pardon power.
With this legal background in mind, we next turn to the congressional and Justice Department investigations that followed President Clinton’s controversial uses of the pardon power.
On his last day in office, President Clinton issued a sweeping number of pardons—140 in total. Among those pardoned was Marc Rich, who had been living as a fugitive in Switzerland since his 1983 indictment for tax evasion and fraud. The pardon of Rich drew significant criticism from both Republicans and Democrats given that it seemed a far cry from correcting a miscarriage of justice. Democratic Senator Chuck Schumer, for instance, stated: “To my mind, there can be no justification for pardoning a fugitive from justice.” He went on to say that such a pardon “stands our justice system on its head and makes a mockery of it.”
But the major controversy stemming from the Rich pardon concerned Rich’s ex-wife, Denise Rich, who had previously donated $450,000 to the Clinton Foundation as well as to Hillary Clinton’s Senate campaign. Republicans and Democrats alike were deeply troubled given the parallels to bribery. Democratic Senator Dick Durbin, for example, said Rich’s pardon “certainly raises the appearance of impropriety.” Former President Jimmy Carter stated: “I don’t think there is any doubt that some of the factors in his pardon were attributable to his large gifts. In my opinion, that was disgraceful.”
The troubling facts surrounding the Rich pardon soon triggered investigations in both houses of Congress and by federal prosecutors in Manhattan. These investigations ultimately evolved to probe whether other pardons by President Clinton were unlawful, including allegations that the President’s half-brother, Roger, orchestrated a pay-for-pardons scheme.
Leveraging its vast oversight powers, the House and Senate issued a voluminous number of subpoenas for documents and witness testimony. For example, in addition to obtaining financial records and President Clinton’s written notes, Congress also heard testimony from high-level White House officials, including President Clinton’s former Chief of Staff and former Counsels regarding their communications with the President.
In coordination with the FBI, the U.S. Attorney for the Southern District of New York also launched an investigation into President Clinton’s pardon of Rich, including allegations that the pardon constituted a bribe in exchange for money. Later, at the direction of the Attorney General, that investigation expanded to include all of President Clinton’s last-minute pardons and commutations.
Ultimately, no criminal charges were brought in connection with the Rich probe, and the criminal investigation eventually closed. The investigations also absolved the Clintons of allegations that they were involved in a vote-for-pardons scheme in connection with Hillary Clinton’s Senate campaign.
The investigations of Pardongate (1.0) offer some key lessons for our current moment.
First, despite the lack of criminal charges, the investigations did uncover some troubling (if not potentially criminal) conduct—perhaps most infamously that President Clinton’s half-brother and brother-in-law were involved in shady efforts to lobby for pardons. Had the President or others known that such troubling behavior would come to light, it stands to reason that they may have been deterred from such conduct—particularly since this information has continued to haunt the Clintons. Thus, even in the absence of criminal prosecution, the public investigation itself was a consequence for the Clintons and ensured that the public knew the facts of what happened and that no one, not even a president, is above the law.
Second, the investigation by Congress in particular not only represented a crucial oversight function but also communicated to future presidents and the public at large what constitutes an abuse of the pardon power. Even if certain of President Clinton’s pardons did not constitute crimes, Congress clearly communicated that the pardons of Marc Rich and others substantially strayed from the justice-seeking purposes of the pardon power. Likewise, notwithstanding the scope of the president’s pardon power, the hearings further affirmed Congress’s power to check those decisions.
Third, Congress’s bipartisan criticism of President Clinton’s pardons may feel like a relic of ancient history from today’s perspective, but it also reflects that Republicans and Democrats can unite during deeply partisan moments to combat executive abuses that threaten democratic norms. If Congress could come together to condemn pardon abuses then, it could and should put aside its differences to do the same at this time.
Responding to Pardongate 2.0
Pardongate 2.0 is already upon us, and both the Department of Justice and Congress should exercise their powers to investigate President Trump’s past and any future abuses of the pardon power. Critically, these investigations should focus not only on President Trump himself but also any others who may be implicated in pardon abuses.
The recent pardon of Michael Flynn—who twice pleaded guilty about lying to the FBI—warrants close scrutiny. For example, in light of reports that President Trump’s lawyers spoke with the attorneys for Flynn and Paul Manafort regarding pardons, federal prosecutors can investigate whether Flynn’s pardon violated obstruction, bribery or other criminal laws. Flynn’s pardon follows President Trump’s decision to commute the sentence of his longtime friend Roger Stone following Stone’s conviction for lying to Congress. If there is any evidence that the President used such a commutation to encourage Stone’s obstruction of Congress, a criminal investigation would be warranted. The President has a history of publicly discussing and dangling such pardons. For example, he offered the acting secretary of Homeland Security a pardon in exchange for committing unlawful acts. Thankfully, DOJ already seems to have been investigating reports of pardon bribery schemes, and it should expand those investigations as any new evidence warrants.
Critically, although President Trump has signaled that he may issue a slew of preemptive pardons (before individuals are investigated or indicted), a preemptive pardon does not prevent DOJ from pursuing criminal charges if it determines the pardon itself violates criminal laws (e.g., bribery) or the Constitution. What’s more, preemptively pardoning an individual for a crime would not prevent DOJ from prosecuting others involved in that crime, and in that case, the pardoned individual would have no Fifth Amendment right not to testify.
In addition to federal prosecutors, Congress has a pivotal role to play in both investigating the President’s pardon abuses and deterring abuses by future presidents. Even if certain of President Trump’s pardons do not constitute crimes or result in convictions, Congress can send a clear message through public hearings—similar to the bipartisan scrutiny and criticisms of the Marc Rich pardon—that pardons should be reserved for those deserving of mercy and grace–not for self-serving or corrupt ends. Similarly, Congress should investigate previous public reporting that Trump had discussed pardoning Michael Cohen and Paul Manafort during the Mueller investigation in an attempt to obstruct justice and place himself above the law. In addition, given the opaqueness of criminal prosecutions, congressional hearings investigating pardon abuses serve the interest of informing the public and thereby restoring faith in the fundamental principle that no one is above the law.
Congressional hearings can also spur much-needed reforms to prevent future abuses of the pardon power. In particular, the next Congress has an historic opportunity to implement such crucial reforms by passing the Protecting Our Democracy Act. The Act will serve as a powerful prophylactic to prevent future pardon abuses by (1) requiring disclosure of materials by the White House and DOJ relating to any self-serving pardons; (2) further clarifying that the federal bribery statutes prevent pardons in exchange for a bribe; and (3) codifying the constitutional prohibition on self-pardons.
If the Act were currently law, for example, President Trump and DOJ would be required to provide all materials to Congress relating to a pardon of President Trump’s family members or a pardon of anyone who obstructed Congress. The same would be true for future presidents, which could serve as a deterrent for issuance of self-serving and abusive pardons.
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