By Ralph Nader
December 24, 2020
Chronic lawbreaker Donald J. Trump is embarking on the biggest presidential pardon spree in American history. Already he has pardoned convicted crooks, thieves, and violent homicidal criminals. Trump’s pardon lawyers are working frantically to present him with names of individuals and categories of individuals whom he can pardon wholesale. The number may reach into the hundreds as many people are pleading with Trump for pardons. (For a partial list of Trump pardons see: https://www.justice.gov/pardon/pardons-granted-president-donald-trump)
Trump, of course, is ecstatic with what he considers his absolute power to pardon anyone, including his family members and himself. He is wrong. All constitutional rights have limits to one degree or another. The power to pardon is extensive, for sure, but it cannot be granted in return for a bribe, a specific obstruction of justice, or in a way that violates core constitutional rights.
The U.S. Supreme Court has not recently issued major opinions relating to the Pardon power, in part because presidents have not so egregiously and offensively pushed beyond the proper limits of Executive prerogative. For example, the Court has not ruled on the matter of presidential self-pardons. But it has declared on more than one occasion that “no one is above the law,” as have our founding fathers and many congressional leaders over the decades. In 1974 the Office of Legal Counsel in the Justice Department concluded that the president cannot self-pardon.
Legal scholars differ on questions about whether presidents have to specify a crime in their pardon proclamations or whether the person pardoned has to admit to a crime or accept a pardon. Trump could provoke Congress and the Courts to start working to establish substantive and procedural bounds of the pardon power.
President Gerald Ford pardoned former President Richard Nixon, who resigned just before being impeached and probable conviction for defying a Congressional subpoena and one count of obstruction of justice. On September 8, 1974, in broad and sweeping language, Ford declared that pursuant to Article II section 2 of the Constitution “I … do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.” There was no judicial challenge filed by anyone with legal standing, certainly not the Justice Department which was preparing to indict Nixon for the Watergate crimes.
President Jimmy Carter, on January 21, 1977, pardoned violators of the draft laws, known as draft resisters, many of whom fled to Canada. He granted “a full, complete and unconditional pardon” to “all persons who may have committed any offense between August 4, 1964, and March 28, 1973, in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder.” He included in this pardon “all persons heretofore convicted,” of any such offense, “restoring to them full political, civil and other rights.” Excluded, however, were all persons “convicted of or who may have committed any offense involving force or violence.”
President Carter specified the offense but did not name the thousands of Americans pardoned. He simply established a Justice Department procedure for those covered by the pardon to get a certificate of pardon.
With four weeks of Trump’s tenure to go, rumors of what he could or should do are erupting. Will he pardon all inmates in federal prisons convicted of nonviolent marijuana or other drug offenses? Will he pardon a wide network of people who could otherwise be compelled to testify against him? Will he pardon former business associates or future business partners of all federal offenses? (He cannot pardon for state offenses).
Individuals do not have to be charged with any federal crime to be pardoned. Trump could pardon them in anticipation of any such charges, indictments, or convictions.
This latitude has prompted some people to suggest pardons for “political prisoners,” or whistleblowers such as Julian Assange and Edward Snowden. Trump may want, it is suggested, to appear more fairhanded in his choices. Thus far, of the 70 people whom have received pardons or commutations from Trump, the vast majority have had a personal connection or political affinity with the President.
Whatever Trump does, two things are certain: the number of pardons he grants will increase rapidly, and they will be given to people close to Trump. It is, however, unlikely that Trump will resign and make Mike Pence president in exchange for Pence making a commitment to pardon despicable Donald and his family members. This reeks too much of bribery.
In the final days of his four years of statutory criminal and constitutional violations (See: December 18, 2019, Congressional Record, H-12197 and many past articles by writers on Trump’s lawbreaking), Trump will give both the Congress and the courts great incentive to establish specific limits and procedures for the proper exercise of the pardon power.
Both legislation and judicial decisions have long elaborated or provided limits to the meaning of general constitutional powers accorded the office of the president. Controlling abuses of presidential pardon powers should be a top priority for Congress. Trump and future presidents cannot be allowed to brazenly escape justice and undermine the rule of law.
Congressional abdication and public apathy will pave the way for the kind of monarchical power so resolutely dreaded by our Constitution’s framers who fought to defeat King George III and repudiate tyranny.