abuse of pardon power, Arpaio pardon, D'Souza pardon, Libby pardon, Madison on pardon power, pardon power
By Frank Bowman
Mr. Trump just pardoned right-wing provocateur Dinesh D’Souza for federal campaign finance violations. In isolation, this pardon is of little importance. It is aggravating, of course, inasmuch as nothing about D’Souza’s case or personal history would seem to qualify him for such an extraordinary exercise of executive clemency. To the contrary, he pled guilty to crimes he plainly committed, received a light sentence, and has been utterly unrepentant. Moreover, the pardon was issued completely outside of the normal painstaking review process which passes through the Justice Department’s Office of the Pardon Attorney. It was just a Trumpian spasm.
A good many commentators have raged against the D’Souza pardon. Some contend that it is yet another indication of Trump’s contempt for the law. Others suggest that it may be a direct signal to Trump courtiers in the Special Counsel’s sights that they need not cooperate because pardons are freely available to friends of the man up top. I agree with all these observations, but I take some solace in the realization that Mr. Trump’s gleeful deployment of a presidential power he imagines to be absolute is, in reality, adding to the case for his impeachment.
Mr. Trump is right that a president’s pardon power is nearly absolute. Some academics have argued that a pardon can be reviewed and reversed by courts either on due process or separation of powers grounds. Those arguments are almost certainly wrong. A president’s pardon of himself may be invalid as violating the fundamental common law principle that no man may be the judge of his own case, but even that is debatable. However, to say that the pardon power is nearly absolute means only that a pardon, once issued, cannot be undone and the person pardoned cannot be unpardoned. That does not mean that the pardoner — the president — is immune from consequences if he misuses his constitutional authority.
Indeed, it is absolutely clear that the Framers of the Constitution believed that a president could be impeached for misuse of the pardon power.
During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president. He said:
Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?
James Madison responded:
There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty….
In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment.
George Nicholas, another delegate to the Virginia convention, made a similar observation, suggesting that the American constitution was superior to British arrangements because the president was subject to impeachment for preemptive pardons of political allies.
These founding era statements are most obviously applicable to any effort by Mr. Trump to pardon political or business associates or family members under investigation by the Justice Department. Use of the pardon power either to shield Mr. Trump personally from liability or to shield him from the political repercussions of criminal prosecutions of his intimates or supporters is indisputably an impeachable offense.
But I would go further. Alexander Hamilton suggested in The Federalist Papers, No. 74, that the presidential pardon power had a twofold purpose: to provide a means of tempering with executive clemency the sometimes harsh results of rigid application of the law and as a tool of statecraft. Hamilton’s example of the second purpose was the use of a well-timed pardon to potential rebels or insurrectionaries to prevent open conflict. Over the succeeding centuries, multiple presidents have employed pardons and amnesties for reasons of state, often after hostilities to reconcile a divided country or region. Notable illustrations include George Washington’s pardons of participants in the Whiskey Rebellion, Madison’s amnesties to deserters in the War of 1812, Andrew Johnson’s pardons of Confederates after the Civil War, and the post-Vietnam War pardons of draft law offenders by Presidents Ford and Carter.
Neither the mercy nor statecraft rationale for pardons can be extended to the issuance of pardons for partisan political ends. Of course, one must tread carefully here because one man’s exercise of mercy or statecraft is another man’s partisan political maneuver. Thomas Jefferson pardoned violators of the Alien and Sedition Acts because he thought that the Act was probably unconstitutional and certainly contrary to American principles. But Jefferson had opposed the Acts in the first place and the pardons pleased his political supporters. Barack Obama pardoned or commuted the sentences of hundreds of drug law violators. For many observers, this was a long-overdue and even insufficient reaction to over-criminalization of narcotics offenses. For Obama’s harsher critics, it could be portrayed as a pander to his electoral coalition.
Likewise, there is plainly some constitutional room for pure whimsicality in presidential judgment about what offenses deserve executive clemency.
Nonetheless, there is no obvious precedent for what appears to be an emerging pattern with Trump — pardons issued almost exclusively (1) to Trump political allies or fellow travelers, (2) to friends or friends of friends, or (3) for the purpose of sending political messages. D’Souza and former Arizona sheriff Joe Arpaio plainly fall in the ally and fellow traveler box. In the second category is the pardon of Scooter Libby whose case seems to have been brought to Trump’s attention by Victoria Toensing, who with her husband and law partner Joe diGenova, is an ardent public defender of Trump and was briefly set to represent him. In the third category is the pardon of Kristian Mark Saucier. Saucier was a sailor convicted of the unauthorized retention of defense information and Trump explicitly compared his treatment to the supposed failure of the Justice Department to prosecute a top Clinton aide. Some have intimated that the Libby pardon also falls in the signaling category inasmuch as Libby was convicted of the kinds of crimes, perjury and obstruction of justice, that figure so heavily in the ongoing Mueller investigation.
The common feature of all these pardons is that none was issued following the ordinary DOJ and White House review processes created to avoid the actuality or appearance of presidential arbitrariness or favoritism. Likewise, none of them was accompanied by any principled explanation of why the defendant merited an exercise of clemency.
I have argued elsewhere that the Arpaio pardon is technically an impeachable offense (although I have never imagined that, standing alone, the Arpaio case would generate an article of impeachment). None of the other pardons discussed here, considered in isolation, reaches that level. Nor do we yet have a sufficient number of cases to prove an incontestable pattern of misuse of the pardon power for partisan purposes.
That said, when I teach evidence to law students, I sometimes use the following analogy to illustrate how lawyers go about satisfying the burden of proof necessary to win a lawsuit: Imagine, I tell the students, that the amount of evidence necessary to meet the burden of proof is a brick wall, about so long, and so wide, and so high. To be relevant — that is, helpful in the task of meeting the burden of proof — no single piece of evidence has to be the size of a complete wall. Each piece of relevant evidence is just a brick in that wall.
As a careful student of the Constitution’s impeachment clauses, I believe that a pattern of using the pardon power for partisan ends is an impeachable offense. Such a pattern is not yet established in Mr. Trump’s case. But the D’Souza pardon is a solid brick in an emerging wall of proof. If Mr. Trump persists on his current path of misusing the pardon authority for personal aggrandizement and political gain, the D’Souza affair could properly take its place among a bill of particulars in an entirely appropriate article of impeachment.