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Saturday, December 26, 2020

Why Trump Can't Pardon his Closest Associates


Leading media outlets are full of speculation to the effect that President Trump might now issue blanket pardons to Rudy Giuliani, to his immediate family, and even to himself.  A Washington Post reporter, Gillian Brockell, writes such “preemptive pardons have a long history.”  Jane Mayer, perhaps the leading political journalist in the United States, discussed blanket pardons in a long piece on Trump’s future in the New Yorker.  While many question whether Trump can pardon himself, hardly anyone has even questioned his right to free family and associates from any legal worries growing out of his administration.  In my opinion as an historian, this is a grave mistake based almost entirely on a single relatively recent episode in our history: Gerald Ford’s sweeping pardon of Richard Nixon.  Although that pardon was never litigated in court, it had no precedent when Ford issued it, and a recent law review article by Aaron Rappaport points out that it violated a fundamental principle of pardon law.  President Trump, in short, has no demonstrated right to issue a blanket pardon to his family members, to Rudy Giuliani, or to himself.

Like our constitutional impeachment law, the Constitution’s pardon provision drew on English precedents established over centuries which the framers knew very well.  In medieval times the King of England had virtually absolute power to pardon offenses, but as early as 1389, Parliament (whose powers fell far short of what they later became) passed a law insisting that the King could not issue pardons for the most serious crimes—including murder, rape and treason—without specifying the exact offense he was pardoning. In 1689, after the Glorious Revolution, Parliament took away the monarch’s right to ignore such laws. By the next century, the most eminent legal commentators, led by William Blackstone, agreed that pardons of felonious conduct could only apply to specific offenses. “A pardon of all felonies,” he wrote “will not pardon a conviction . . . (for it is presumed the King knew not of those proceedings,) but the conviction . . . must be particularly mentioned.”[1] 

It does not require much reflection to see why this is so.  The pardon power existed in England and now exists in the United States because of many good reasons to excuse a particular offense by an individual, or, as has often happened—as we shall see—by a large group of individuals. A new president may reject a law under which people were convicted, or may find mercy a better strategy to deal with an outbreak of lawlessness.  Evidence may show that a convict was innocent. To issue a pardon for any offense that a person might have committed, however, would simply elevate that person above the law.  A chief executive might hire subordinates for the express purpose of committing federal crimes (as Richard Nixon did, indirectly, with the White House Plumbers in 1971), and promise them such a pardon before he left office to protect both them and himself. Such a possibility clearly lies well beyond the limits of legal, legitimate government as understood by the founding fathers.

Unfortunately, that is exactly the kind of pardon that Gerald Ford gave Richard Nixon in 1974, weeks after Nixon resigned from office.  In order to prevent the ordeal of a long trial, Ford said, he granted “ a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”  Nixon appears to have been, literally, the first person in American history to get such a pardon.  At least one contemporary commentator has compared a possible Trump pardon for his family to the “blanket pardons” that previous Presidents have issued.  George Washington pardoned nearly all the rebels in the Whisky Rebellion. Thomas Jefferson pardoned everyone convicted of violating the Alien and Sedition Acts.  After Utah joined the Union President Benjamin Harrison pardoned all citizens of Utah who had committed the crime of polygamy.  Jimmy Carter became the last of a long series of Presidents to pardon all men who had resisted a wartime draft.  Many of those pardoned in these instances had not been charged, but in each case, they were being immunized against prosecution for a very specific crime.  They respected the English common law precedent that pardons had to refer to specific offenses.

Unfortunately, a subsequent President followed in Ford’s footsteps. When George H. W. Bush pardoned six convicted Iran-Contra defendants just before leaving office in 1992, he pardoned them “for all offenses charged or prosecuted by independent counsel Lawrence E. Walsh or other members of his office, or committed by these individuals and within the jurisdiction of that office.”  Not content to reverse these men’s prior convictions on cases brought by the independent counsel, Bush removed them from his jurisdiction.  Given that Bush himself had been an active participant in the Iran-Contra Affair and that his own superior, then-President Reagan, had agreed to appoint the independent counsel, this was a rather obvious betrayal of our principles of justice as well, and one that should show us how wrong the precedent that Ford set was. Even this, however, did not relieve the six of legal jeopardy for any federal offense that they might have committed during a specific period of time.

The whole career and presidency of Donald Trump testifies to weaknesses in our justice system.  Had Trump not managed to escape serious financial and other consequences from a long series of other legal scrapes, he would never have become president in the first place. Now, he is actively contemplating trying to place key associates, and himself, out of the reach of the federal criminal justice system for all time.  He must not be allowed to do this.  Should he issue such charges, and should prosecutors find sufficient evidence of new, indictable offenses by any of those he pardons, they should bring the indictments and challenge the pardons on the grounds that they did not mention a specific offense, and tried to give the recipients an immunity that the founders never intended anyone to have.  That will give the courts the opportunity to confirm that Ford’s pardon of Nixon is not a valid precedent in American law. 

[1] Quoted in Rappaport, op. cit., p. 289.


Bob H said...

Hope you're right! Nothing would make me happier than an indictment, a court case throwing out blanket pardons, followed by trial on the President's financial misdeeds. This would go a long way to restoring the rule of law to our country.

Bozon said...

Nice try.
Against your own view, you have cited ample authority for extensive pardons, throughout the history of the republic.
I see no reason why Trump's pardons should even raise an eyebrow constitutionally, or even more importantly, precedentially.
One can bemoan the flaws in our system and history all one wants.
I am not defending Trump.
He seems to me to need little.
All the best

Ben said...

Thank you for this cogent argument! I have been wondering if there is a case to be made along these rough lines, and here it is, clear as day.

Jude Hammerle said...

Dear Dr. Kaiser,

Hopefully the Supreme Court will get a chance either to glorify or to embarrass itself.

Jude Hammerle

Bozon said...

This is worth pondering, re pardons generally, and related concepts, such as amnesty.

Pardons for ex-Confederates,

I do not vouch for their ideological perspective, or their accuracy in detail.

They seem somewhat to do Johnson the customary injustices of history.

All the best