Blog No. 275. The Trump Pardons: The Need for Review and Reform

Past presidents have on occasion issued pardons of debatable merit that drew criticism. In characteristic fashion, however, Donald Trump has far outdistanced his predecessors in abusing the pardon power. As a New York Times article summarized the Trump pardons:

They appeared in many cases to have bypassed the traditional Justice Department review process — more than half of the cases did not meet the department’s standards for consideration — and reflected Mr. Trump’s long-held grudges about the Russia investigation, his instinct to side with members of the military accused of wrongdoing and his willingness to reward political allies.

In terms of pardon criteria, Lawfare’s Jack Goldsmith and Matthew Gluck estimated that over 90 percent of Trump’s clemency orders have involved “personal or political connections” to the president. 

And there may still be more shoes to drop, given speculation that Trump might even issue pardons to his family members or even himself. Although a number of legal authorities have challenged the validity of a self-pardon, his pardons to date have produced criticism but little resistance: critics for the most part have sighed in resignation, acknowledging the breadth of the pardon power provided by the constitution. Republican Senator Pat Toomey doubtless reflected the view of many when he said on Sunday that President Trump‘s pardons for Roger Stone, Paul Manafort and other loyalists convicted of various crimes were legal and constitutional but a “misuse” of power.

Reining in the pardon power through a constitutional amendment would be a tortuous path at best and is probably impossible for the foreseeable future. Congress, however, is not necessarily helpless. With respect to the Trump pardons, Congressional hearings, with testimony from the pardon recipients, could shine a light on the kinds of egregious conduct Trump pardoned, as well as the motives for the pardons, including any quid pro quo, expressed or implied. Moreover, even without a constitutional amendment, Congress might at least be able to fashion legislation that would respect the presidential prerogative, but erect some procedural guardrails governing its exercise.

Before turning to possible reforms, it is appropriate to consider some of the specific Trump pardons.  Observers have differed in their assessment of which of the pardons are the most indefensible, and it is in fact a close question. However, some principal categories are briefly summarized below.

The Trump Pardons

Pardons for War Criminals

Trump pardoned four security guards employed by a U.S. contractor, Blackwater Security Consultants, in Baghdad in 2007. They were found guilty in the massacre of 14 Iraqi civilians, including two children, in that year. The guards were part of an armored convoy that opened fire indiscriminately with machine-guns, grenade launchers and a sniper on a crowd of unarmed people in a square in the Iraqi capital.  At the sentencing, a government memorandum charged that “This is far from the ordinary case. The crimes here were so horrendous – the massacre and maiming of innocents so heinous – that they outweigh any factors that the defendants may argue form a basis for leniency.” It said that the defendants had “shown no remorse for their actions.” Three of the defendants received sentences of 30 years in prison and the fourth a sentence of life in prison.

Erik Prince, who founded Blackwater, is a close Trump ally and the brother of Trump’s Secretary of Education, Betsy DeVos. The pardons were supported by several Republican Congressmen as well as commentators on Fox News.

Pardons for Mueller Defendants

Trump has wielded the pardon power to mount a belated counterattack on the Mueller probe, pardoning several defendants who were either convicted or pled guilty: Paul Manafort, Roger Stone, Michael Flynn, George Papadopoulos and Alex van der Zwaan. Of these, the most troubling are the pardons for Stone and Manafort, both of which bear the distinct aroma of pardons given in exchange for the defendants’ refusal to provide the Mueller team with incriminating evidence against Trump.

In an essay in the Financial Times, Laurence Tribe analyzed the pardon power and its application to Manafort and Stone. He observed:

If Mr. Trump abuses pardons to shield himself and key allies from justice, that could be charged as criminal obstruction of justice, an abuse of the constitutional power of clemency to accomplish an illegal end.

He added:

If Mr. Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licenses to commit heinous crimes with impunity.

While Tribe makes a sound point, it is unlikely that a President Biden, seeking unity and bipartisan cooperation, would encourage his Attorney General to investigate and prosecute his predecessor. On the other hand, Congressional Democrats are unlikely to feel such a constraint. And recipients of pardons called as witnesses would have little basis for invoking their privilege against self-incrimination. If Congress should discover compelling evidence of obstruction, the Department of Justice might conclude that prosecution could not be avoided.

Pardons for Corrupt Congressmen

Trump gave pardons to two congressmen convicted of flagrant financial crimes: Duncan D. Hunter of California, Chris Collins of New York and commuted the sentence of a third, Steve Stockman of Texas. While Stockman has a medical condition offering some rationale for his release, Hunter and Collins have no such condition and their common denominator, along with Stockman is simply that they were early and loyal supporters of Trump.

Pardon for a Corrupt Family Member

Another pardon recipient was Charles Kushner, father of Trump’s son-in-law, Jared Kushner. The elder Kushner pleaded guilty to tax evasion, illegal campaign donations and witness tampering, and spent more than a year in prison. He set up his brother-in-law, who was cooperating with the investigation, by hiring a prostitute to seduce him and then sending a tape of the act to his wife, Kushner’s own sister. He was prosecuted by Chris Christie, a U.S. attorney at the time. In a 2019 interview, Christie called Charles Kushner’s actions “one of the most loathsome, disgusting crimes that I prosecuted when I was U.S. Attorney.” When asked for comment on the Kushner pardon, Christie refrained from criticizing it, but pointedly praised the work of the prosecution team that had obtained Kushner’s guilty plea.

Pardon of a Brutal Police Officer

A Trump pardon that had occasioned little comment was exposed in a Washington Post oped on December 30, titled “The worst Trump pardon you never heard of.” In the piece, Alex Busansky, formerly a lawyer in the Department of Justice Civil Rights Division, described in detail the vicious action (and troublesome record) of a police officer who had her K-9 attack a homeless man for no legitimate law enforcement purpose. As it happened, the victim, who suffered a wound requiring 10 stitches, was an illegal alien, so perhaps in Trump’s eyes, fair game. The pardon was celebrated on Fox News.

Prospective Pardons: Trump and His Family

It remains to be seen whether Trump will issue pardons to family members and even to himself. Although there would seem to be no bar to Trump’s pardon of family members, there are serious doubts that Trump could pardon himself. As Professor Tribe explained:

[A]s Richard Nixon’s justice department opined in 1974, a self-pardon is not within the president’s constitutional power. A self-pardon twists the text of the constitution — one doesn’t “grant” things to oneself — and violates the centuries-old tenet that nobody can be trusted to judge his own case. It would also liberate every president to ignore federal criminal laws while in office, placing the holder functionally outside the law.

Nevertheless, the issue is unresolved.

Although it is perilous to predict anything that Donald Trump might do or not do, I will suggest that Trump is not likely to pardon his family or himself. To begin with, accepting a pardon carries with it a stigma by implying actual or potential criminal liability. Moreover, it may be unnecessary, at least as to federal crimes. The only member of the family known to be at risk from a specific charge is Trump himself: he was clearly the individual referenced in the indictment of Michael Cohen in the payoff of Stormy Daniels that sent Cohen to prison for following Trump’s orders. Yet, I question whether the Biden administration will find it in the national interest to prosecute that case against Trump or to bring any criminal charges against Trump or other members of his family. At the same time, a Trump pardon would provide no protection for Trump and his family where they are most vulnerable—from prosecution by the Manhattan District Attorney, Cyrus Vance, or from the New York State Attorney General, Letitia James.

Possibilities of Reform

The pardon power granted by the constitution is, on its face, broad and, except for the reservation that it does not apply in cases of impeachment, appears unlimited. Article II, Section 2 simply provides that: “[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

In 2017, Tennessee Congressman Steve Cohen introduced a constitutional amendment that would have limited the presidential pardon.  Although Cohen is Chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, his proposal did not advance. He introduced a similar measure in 2019, that would prohibit the president from granting a pardon or reprieve to himself or herself, to certain members of the President’s family, to members of the President’s administration, or to paid employees of the President’s presidential campaign. Cohen may introduce the same proposal in the new Congress commencing on January 3, but it is again unlikely to get very far.

Short of a constitutional amendment, there may be some narrow opportunities for reform. Writing in Lawfare, Jack Goldsmith and Bob Bauer offered two rather modest proposals for reform. First, they suggest legislation that would make it “an express crime for a president to offer to sell, or to sell, a pardon for personal financial benefit or a campaign contribution, or for the benefit of an immediate family member—or to use a pardon, or offer one, in a corrupt scheme to obstruct a judicial proceeding.” The authors acknowledge that (as suggested by Professor Tribe) such conduct may already be criminal under existing law, but they urge that their legislation would “resolve any doubts.”

Second, Bauer and Goldsmith urge legislation barring a self-pardon by a president. It is not clear whether the constitution permits a self-pardon; if it does, however, that capacity cannot be removed by a statute. Nevertheless, the writers assert that “Congress’s constitutional judgment can matter a lot, both in informing subsequent judicial review of a self-pardon and in giving a president pause about issuing one in the first place.”

The Bauer and Goldsmith proposals do not necessarily exhaust the range of possible reforms. Although the pardon power may appear unlimited on its face, other constitutional provisions that appear facially unlimited have been subject to interpretation in their application. The First Amendment provides that Congress shall “make no law…abridging the freedom of speech, or of the press.” Yet that freedom (made applicable to the states through the Fourteenth Amendment) has been held to permit limitation — abridgment — of many kinds of speech (libel, slander, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, perjury.) Moreover, the Court has upheld restrictions on speech relating to time, place and manner of delivery. The Second Amendment, guaranteeing the “right of the people to keep and bear arms” has been given a broad reading by the Supreme Court, but even there the Court recognized that the amendment does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Such precedents give some support the view that the pardon power may be subject to some interpretation and limitation such as excluding not only self-pardons, but pardons granted for a corrupt purpose. They might also support legislation that did not limit the pardon power substantively but regulated the manner of its exercise. For example, legislation might require a president to give Congress 90-days notice of a proposed pardon together with a statement of the reasons for its grant. Such a provision would allow time for appropriate scrutiny by Congress and the public before the pardon became effective. A president might ignore such a requirement, asserting that it was unconstitutional and, if so, it would probably not invalidate the pardon he or she granted. Such disregard, however, would come at some political cost, particularly if compliance had become the norm.

In any case, it would be entirely appropriate for Congress not only to examine the more odious of the Trump pardons but to consider the possibilities for reform going forward.