THE LIMITED SCOPE OF THE PRESIDENTIAL PARDON — A CASE FOR WHY DONALD TRUMP SHOULD ONLY BE ABLE PARDON SPECIFIED PEOPLE WHO HAVE BEEN CONVICTED OF OR ADMITTED GUILT TO SPECIFIED CRIMES
For some reason, it is just assumed that a president’s pardon power is virtually unlimited. Specifically, I hear legal commentators simply assuming that a president can pardon general classes of people and/or a specific person for all unspecified federal crimes they may have committed in the past even if that person has not been charged or convicted of a crime. I disagree with these assumptions. In fact, I find the potential implications of these assumption to be unimaginably dangerous. In light of these potential implications, we must revisit how broadly we consider the pardon power to be. A narrower view makes far more sense.
The concept of the presidential pardon comes from Article II, Section 2 of the Constitution which grants a president the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It’s a vague clause that has seldom been interpreted by the courts. In fact, the scope of the pardon power itself has never been interpreted by any court.
Therefore, it is strange that legal commentators are so quick to make assumptions regarding the breadth of the power. Likely, these assumptions derive from how the power has been exercised by presidents historically. For example, Gerald Ford pardoned Richard Nixon despite the fact that he had not been charged with any federal crime. Jimmy Carter pardoned a class of non-specified individuals that had evaded the Vietnam draft (even if they had not been charged with draft evasion). But these pardons have never been tested judicially. The federal government never attempted to prosecute either Nixon or those potentially covered by Carter’s pardon. In fact, the federal prosecutors have never tested the constitutionality of any non-specific and/or anticipatory pardon.
But the failure to test a pardon judicially does not render such pardon constitutional. And interpreting a president’s pardon power so broadly could potentially have dangerous implications. To allow a president to pardon classes of people who have not even been convicted of crimes would, at least theoretically, permit someone like Donald Trump to pardon every person that has voted for him for all federal crimes they have ever committed. (e.g., tax crimes, electoral crimes, spying, insider trading, etc.) In fact, if angered enough by his electoral loss, Trump could pardon every American of any and all federal crimes they ever committed through the date of the pardon — just to make life difficult for the incoming Biden administration. Given the destructive implications from interpreting the pardon power so broadly, it is impossible to imagine that the drafters of the Constitution intended it to be utilized in this manner.
A more logical reading is that presidents are limited to granting reprieve to specified individuals that have committed specified crimes where guilt has been determined (either though criminal conviction or admission). Each pardon would have to identify the person that committed the crime and the specific crime or crimes being pardoned. Such a limited reading would not only prevent the risk of the destructive abuse discussed above, but would also permit better oversight by Congress and the electorate — i.e., to ensure that the president was not using the power in a self-serving fashion through masking of specific persons or crimes being pardoned that may have a connection to the president.
So what can be done to address the problems above? One potential solution would be for Congress to enact legislation that defines the parameters of the presidential pardon. The second solution would be to prosecute a pardonee if federal prosecutors believed the pardon had been abused. The third potential solution may actually arise if Trump decides to pardon himself. Such a pardon would provide two potential issues — (1) whether a president can actually issue a self-pardon (most agree a president does not have this power) and (2) whether Trump can pardon himself from a crime without first admitting to the crime or being convicted of same. In any of these scenarios, it will ultimately be up to federal courts to define just how broad the pardon power is.