The Presidential Pardon Power Cannot Be Unlimited

I’m not a constitutional law expert but I think it’s common sense to believe that there’s a limit to the presidential pardon power. It’s true that the president can pardon whomever he wants and there’s nothing people can do about it as far as undoing the actual pardon. We can’t for example, reimpose penalties on a convicted criminal just because we determine his or her pardon was corruptly obtained. But I also don’t believe that the only penalty for a corrupt pardon is or should be for Congress to use its impeachment power. If the president issues a pardon with the clear purpose of obstructing justice, particularly if they do so to protect themselves from either prosecution or impeachment, then I think they should be brought up on criminal charges, and we shouldn’t have to wait until after they’ve left office to see those chose charges pursued.

With news breaking that the president’s former lead attorney, John Dowd, floated pardons to Paul Manafort and Michael Flynn’s lawyers, this is no longer a theoretical conversation. On the one hand, we have here a case where the pardons had a corrupting influence even though they haven’t yet and may never be issued. On the other hand, we can now more clearly imagine what it will look like if they are issued.

The New York Times piece on this emphasizes that scholars and experts are of two minds about what the president can and cannot do.

But even if a pardon were ultimately aimed at hindering an investigation, it might still pass legal muster, said Jack Goldsmith, a former assistant attorney general in the George W. Bush administration and a professor at Harvard Law School.

“There are few powers in the Constitution as absolute as the pardon power — it is exclusively the president’s and cannot be burdened by the courts or the legislature,” he said. “It would be very difficult to look at the president’s motives in issuing a pardon to make an obstruction case.”

The remedy for such interference would more likely be found in elections or impeachment than in prosecuting the president, Mr. Goldsmith added.

But pardon power is not unlimited, said Samuel W. Buell, a professor of law at Duke University.

“The framers did not create the power to pardon as a way for the president to protect himself and his associates” from being prosecuted for their own criminal behavior, he said.

Under Mr. Buell’s interpretation, Mr. Dowd’s efforts could be used against the president in an obstruction case if prosecutors want to demonstrate that it was part of larger conspiracy to impede the special counsel investigation.

Since Jack Goldsmith (along with John Yoo) was the legal architect of torture during the administration of George W. Bush it does not surprise me that I completely disagree with his interpretation of the president’s pardon power. I find it impossible to disagree with the logic employed by Mr. Buell. It simply cannot be the case that the Founding Fathers intended to give the president of the United States a weapon that could be used to obstruct justice or to run any kind of criminal syndicate without any fear other than impeachment.  At best, they simply failed to account for the possibility that we’d ever face a situation where the pardon power would be used in this way.

Congress could end this controversy right now by simply asserting that pardons in the Russia investigation that amount to efforts to protect the president and obstruct the prosecutors will be considered a slam-dunk impeachable offense. But if they won’t exercise their oversight responsibilities, then I see no reason why the president should be able to hide behind his absolute power to pardon to argue that he has an absolute right to be completely above the law.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.