Posted Fri, Jan 1st 2021 3:38 PM by Amy Howe
The Constitution gives the President the power to “grant reparations and pardons for crimes against the United States, except in cases of impeachment”. In the days leading up to Christmas, President Donald Trump used that power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser Jared Kushner; Roger Stone, convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men convicted of the murder of Iraqi civilians while working as contractors for the private security company Blackwater. With just under three weeks before Trump’s term in office, further pardons could be in sight – and Trump has claimed he has the absolute right “to forgive himself.
The Supreme Court has made it clear that the President’s power to grant pardons, subject to the exception of impeachment, is “unlimited” and has virtually no oversight or restriction on Congress. In Ex parte Garland, in which President Andrew Johnson pardoned an attorney who had served in the Confederation legislature, the court noted that the president’s pardon covers all federal offenses. The President can issue a pardon at any time after a crime has been committed and before, during or after criminal proceedings. However, the president cannot excuse anyone for future crimes. A pardon covers both the perpetrator’s guilt for the crime and the penalty for that crime. If there is a full pardon, the Supreme Court has stated, it is like the defendant never committed the crime.
In the Burdick v. United States case, the Supreme Court dealt with the case of a newspaper editor who refused to testify before a grand jury and invoked the fifth amendment, even after the President pardoned him. Burdick refused to accept the pardon, and he was despised for refusing to testify. The question before the Supreme Court was what effect, if any, the unaccepted pardon. The court ruled that a pardon will only be effective if it is accepted. The court also compared the immunity granted by Congress to a pardon, stating that the differences were “significant”. In contrast to immunity, according to the court, a pardon “is associated with an assignment of guilt; Accept a confession from it. “
And in the Connecticut Board of Pardons v. Dumschat, the court stressed that pardons “traditionally were not a matter for the courts; As such, they are rarely, if ever, suitable subjects for judicial review. “
The broad and largely unverifiable pardon power outlined in the Supreme Court cases means the president has considerable leeway to pardon, for example, family members or close associates like former New York City Mayor Rudolph Giuliani – though Neither Giuliani nor Trump family members have been charged with crimes.
A presidential pardon only applies to federal crimes, leaving the possibility that anyone Trump pardoned will continue to be indicted in a state court. In 2019, the Supreme Court in the Gamble v. United States case upheld the doctrine of “dual sovereignty,” which allows a state to prosecute a defendant under federal law after the federal government prosecuted him for the same behavior under federal law without breaking the law, the constitution prohibits the double exposure. (Some states, such as New York, also have their own double exposure laws. In October, a New York court dropped state mortgage fraud charges against Manafort and referred to his federal conviction on similar charges.)
The Supreme Court has not addressed the question of whether Trump can forgive himself. In a memorandum dated August 5, 1974, less than a week before President Richard Nixon resigned, Acting Assistant Attorney General Mary Lawton of the Justice Department’s Office of Legal Counsel concluded that the answer was no. However, the memorandum left open the possibility of two workarounds: Congress could excuse the president (an unlikely scenario these days); or the president could allow the vice-president to become the incumbent president under the 25th Amendment on the grounds that the president was temporarily unable to perform his duties and the vice-president could then excuse him.
All this is of course purely hypothetical at the moment. It remains to be seen whether the president will issue further pardons before January 20th and, if he does, who will receive them.
This article was originally published by Howe on the Court.
Amy Howe, the Supreme Court and the President’s Pardon,
SCOTUSblog (January 1, 2021, 3:38 pm), https://www.scotusblog.com/2021/01/the-supreme-court-and-the-presidents-pardon-power/