Donald Trump is exiting office with a final outburst of constitutional contempt. Like a Borgia pope trading indulgences as quid pro quos with his corrupt cardinals, Mr. Trump on Wednesday used one of the most sweeping powers of the presidency to dole out dozens of odious pardons to a roster of corrupt politicians and business executives as well as cronies and loyalists like Steve Bannon.
The pardon of Mr. Bannon, his former chief strategist, encapsulates the most repugnant aspects of Mr. Trump’s misuse of the pardon power: cronyism, criminality and cultivation of his far-right base. One of us is an originalist Republican and the other a living-Constitution Democrat, but we both think pardons like that of Mr. Bannon may be unconstitutional.
And as with previous actions for Roger Stone, Paul Manafort and Michael Flynn, the new pardon of Mr. Bannon is both corrupt and a possible obstruction of justice, as he might otherwise have turned against the former president in a potential criminal, civil or impeachment proceeding. Mr. Bannon has been a witness to Mr. Trump’s activities for years, and the two were reportedly in communication in the run-up to Mr. Trump’s incitement of the Jan. 6 insurrection.
The Bannon pardon is also red meat for the extreme right, similar to those that preceded it for Sheriff Joe Arpaio, Dinesh D’Souza, ex-U.S. military war criminals, Blackwater mercenaries and the like. They appear designed to excite Mr. Trump’s base, which is no minor consideration when he is speculating about forming a new political party.
The corrupt politicians Mr. Trump rewarded included three former Republican members of the House and Kwame Kilpatrick, a Democrat and former Detroit mayor. Another individual, the disgraced (and twice convicted) megadonor Elliot Broidy, had financial and political ties to Mr. Trump. Like Mr. Bannon, might Mr. Broidy also have incriminating information Mr. Trump does not want revealed? About 20 years ago, President Bill Clinton’s pardon of the tax cheat Marc Rich set off a bipartisan wave of outrage and a criminal investigation into whether it was a result of a bribe. Mr. Trump’s pardons are worse and should be criminally investigated.
Presidential pardon power is extraordinary, but it is not limitless. For the past 25 years, the Supreme Court has been reading federal grants of power like the Commerce Clause and the Necessary and Proper Clause more narrowly than at any time since 1937. The court should be just as strict in giving the pardon power only its original public meaning.
Mr. Trump did not have the constitutional power to obstruct justice by failing to faithfully execute the law through pardons of associates like Mr. Bannon, who could potentially testify against him. The Constitution and its amendments work like a giant power of attorney by which the founding generation, and their successors, We the People, have delegated certain limited and enumerated powers to the president, Congress, the federal courts and the states. The president is empowered to take care that the laws be faithfully executed and not to break them.
As Edward Coke famously argued in Dr. Bonham’s Case in 1610, no one can be a judge in his own cause. This has been a bedrock principle of Anglo-American law for more than 400 years — one that Mr. Trump sought to shatter by pardoning people who might testify against him. The Constitution does not authorize that, and we believe the courts should reject such pardons, as the Department of Justice did when it addressed the question of presidential self-pardons at the end of the Nixon administration.
Recent decisions of the Supreme Court of Britain have held that monarchal prerogatives akin to the pardon power must yield to modern practice. In 2017, the court held that Queen Elizabeth II’s executive power did not allow her to effectuate Brexit by nullifying the treaties by which Britain had joined the European Union — even though traditionally monarchs (and U.S. presidents) have unilaterally abrogated treaties. Then in 2019, the British Supreme Court held that she had acted unlawfully when she attempted to exercise another of her powers by proroguing, or temporarily suspending, a session of Parliament at the request of the prime minister to advance Brexit.
These are just the latest examples of how ancient powers of English monarchs have all been subjected to the rule of law gradually in the past 400 years. Presidential power, too, has been tamed over the past 230 years by the adoption of the two-term limit for presidents, by key statutes like the Administrative Procedure Act and the Impoundment Control Act and, since the Youngstown Steel case in 1952, by vigorous judicial review.
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Presidential Pardons, Explained
President Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. Here’s some clarity on his ability to pardon.
- May a president issue prospective pardons before any charges or conviction? Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court said 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.” It is unusual for a president to issue a prospective pardon before any charges are filed, but there are examples, perhaps most famously President Gerald R. Ford’s pardon in 1974 of Richard M. Nixon to prevent him from being prosecuted after the Watergate scandal.
- May a president pardon his relatives and close allies? Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming. In 2000, shortly before leaving office, President Bill Clinton issued a slew of controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.
- May a president issue a general pardon? This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.
- May a president pardon himself? This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case which gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
- Find more answers here.
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