Originally published on Just Security.
Over the weekend, one of President Donald Trump’s personal lawyers, Jay Sekulow, refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. Sekulow told ABC’s This Week: “He can pardon individuals, of course. That’s because the founders of our country put that in the United States Constitution: the power to pardon. But I have not had those conversations, so I couldn’t speculate on that.”
The issue of whether Trump could use his pardon power returns us to the debate over whether a sitting president may be indicted or whether the Constitution requires impeachment and removal prior to indictment. As some have noted, that is almost a purely academic question because it is highly unlikely that Special Counsel Robert Mueller would indict Trump while still in office. In any event, there is the potential for post-presidency criminal exposure. In addition, Trump’s family members and close associates could also be under investigation. This means Trump could be tempted to insulate them by granting pardons before they’re convicted of anything.
Presidents tend to save their most controversial grants of clemency for the end of their term in order to avoid the ensuing political firestorm while in office. But a Russia-related pardon would be particularly incendiary politically. That may not mean much to Trump given that a defining element of his rise has been his willingness to disregard longstanding norms and upend convention. He has mocked the disabled, attacked a Gold Star family, joked about sexual assault, savaged the free press, and fired the FBI director investigating Russian interference.
Aside from the political dynamics, granting a pardon in the context of the Russia investigation also raises fundamental questions of constitutional law.
Presidential Pardon Power
Presidential pardon power derives from a specific grant in the Constitution. Article II, Section 2 vests the president with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President’s pardon power is limited to federal offenses, which include federal prosecutions in U.S. territories like the District of Columbia and Puerto Rico. Clemency requests, which include both requests for a pardon and requests that a sentence be commuted, typically flow through the Office of the Pardon Attorney at the Department of Justice (see the Justice Department’s FAQs). The Justice Department evaluates clemency requests pursuant to standards set forth in the U.S. Attorneys’ Manual. However, the president may bypass that process given that it is a power expressly reserved for the president.
A Prospective Pardon?
A president can prospectively pardon individuals for crimes that have occurred but have not been charged. In the most famous example, President Gerald Ford pardoned Richard Nixon even though he was not under indictment. President Ford’s proclamation included 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 his presidency. Similarly, President George H.W. Bush issued full pardons to six people implicated in the Iran-Contra Affair, some of whom still faced trial.
The Nixon pardon was a political disaster that ended Ford’s presidential honeymoon, but it also sparked a debate among legal commentators about whether it was constitutional. Mark Rozell gives a brief and interesting treatment of the debate. Some argued it was beyond the power of the president to relieve a person of criminal liability for hypothetical offenses (see Edwin Brown Firmage and R. Collin Magnum here). However most sources suggest a prospective pardon is within the president’s constitutional authority. In Ex Parte Garland, 71 U.S. 333, 380 (1867), the Supreme Court described the power in broad temporal terms:
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. (emphasis added).
A 1995 Office of Legal Counsel (OLC) opinion notes that presidents throughout U.S. history “have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.” It cites an Attorney General opinion from the 1850s, which defends the president’s preemptive power on the grounds that “the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime.” Members of Congress have occasionally contemplated a constitutional amendment to preclude a future pardon like Nixon received, which itself suggests Congress acquiesces to the Executive Branch’s view. Most legal authorities indicate President Trump has the power to grant prospective pardons for criminal acts not subject to formal charge.
Three days before Nixon resigned, OLC issued an opinion that “[u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as ‘no man can be a judge in his own case’) to constitutional structure (a self-pardon would defeat the purposes of Article I, Section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach President Bill Clinton, which is discussed in the introduction to this Oklahoma Law Review article. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.
A Twenty-Fifth Amendment Pardon Scheme?
In its Watergate opinion, OLC also suggested that the president could invoke Section 3 of the Twenty-Fifth Amendment to allow the vice president, in his role as acting president, to pardon the president. “If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office,” the opinion stated. However, if the president and vice president conspired to launder away the president’s criminal liability, it would trigger a seismic political event. It would also tarnish the vice president’s standing as a politically viable successor in the event of impeachment. However, I have not yet seen a legal obstacle to that kind of scheme.
A Pardon’s Effect on the Special Counsel Investigation
As for the special counsel, a prospective pardon would have a narrowing effect on his authority, as it would end any criminal jeopardy arising from his investigation. However, provided there are still active leads and targets, the special counsel mandate would continue. It would raise interesting legal questions. For example, a pardoned individual could still potentially serve as an unindicted coconspirator, which triggers benefits to a prosecution such as a hearsay exception for co-conspirator statements.
A Pardon’s Effect on the Congressional Investigations
Congressional investigations serve legislative policy and oversight goals rather than criminal enforcement goals, so a pardon does not end an Article I inquiry. But there could be other counterintuitive effects of a pardon on the ongoing congressional investigations into Russia’s interference in the 2016 election and whether there was any coordination with the Trump campaign. For example, it could potentially remove federal legal jeopardy in a manner that may defeat an assertion of the Fifth Amendment privilege against self-incrimination. Were Trump to pardon his former national security adviser, Michael Flynn, tomorrow, Congress might be able to get a court order requiring Flynn to testify before the committees because he no longer faces federal criminal prosecution. That court order or resulting congressional contempt finding, in turn, could theoretically be enforced by coercive contempt (i.e., jailing until such time as the witness provides ordered testimony). Because coercion serves process integrity goals rather than criminal goals, that enforcement power probably could not be defeated by another presidential pardon.
The criminal and congressional Russian investigations should proceed with integrity and without interference. With Trump at the helm and his family under scrutiny, pardon power hangs over the investigations like a sword of Damocles. The pardon sword is largely held overhead by a thread made of political, rather than legal, fiber.