//  10/1/18  //  Commentary

By Aditi Juneja & Sonya Petri of Protect Democracy

Last week, Protect Democracy issued a memo to members of Congress articulating constraints on the pardon power. The memo – and an accompanying fact sheet co-sponsored by a broad coalition of nine organizations from across the political spectrum – reject the President’s claim that the pardon power is “absolute.”

The memo and fact sheet describe three types of limits on the pardon power.

The Constitution Prohibits Self- or Self-Protective Pardons

Before taking office, the President takes an oath to preserve, protect and defend the Constitution, which requires him to “take care that the laws be faithfully executed.” These two features of the President’s job description require the President to act on behalf of this nation’s laws, not in exception to them.

And in the U.S., no one is above the law. But if we take the pardon power as “absolute,” then the President would be the exception. He could use a self-pardon to avoid legal accountability. Self-pardons contradict the core American value that no one is above the law and the executive branch has issued its own legal analysis that arrives at the same conclusion. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.“

Similarly, as explained in a Washington Post op-ed by Paul Rosenzweig of R Street and Justin Florence of Protect Democracy, the President can’t pardon others to protect himself. This would amount to a self-protective pardon, which is unconstitutional and corrupt for the same reasons as a self-pardon. A self-protective pardon achieves the same corrupt goal as a direct self-pardon by allowing the President to be judge and jury in his own case. As explained in Federalist Papers Nos. 65 and 69, the Constitution’s authors did not intend the pardon power to give the President the sovereign immunity of a king. Instead, as Federalist Paper No. 74 explains, they hoped it would lawfully enable expedient relief in circumstances where “justice would [otherwise] wear a countenance too sanguinary and cruel.

The Pardon Power Can’t Be Used to Eviscerate the Judicial Power and Bill of Rights

Another constitutional constraint on the pardon power comes from the power of the judiciary in Article III. The pardon power cannot be used to undermine the authority of courts to enforce court orders protecting of individuals’ rights. Consider, for example, the presidential pardon of Arizona Sheriff Joe Arpaio. The pardon of Arpaio undermines the court’s protections of private constitutional rights because Arpaio was found guilty of criminal contempt after he disregarded a court order that prohibited him from committing continued violations of the constitutional rights of plaintiffs in a civil case against him.

Pardoning Arpaio for criminal contempt of court would neuter the court’s authority to enforce its own orders. Thus, the pardon of Arpaio contradicts another core constitutional power belonging to a co-equal branch. Protect Democracy has challenged this pardon in court, asking for a private attorney to be appointed to present full briefing and argument on the issue. The decision of whether to consider the appointment en banc is currently pending in the Ninth Circuit. When the U.S. District Court was considering Arpaio’s post-pardon request to vacate his conviction, Protect Democracy and other organizations and Members of Congress filed amicus briefs explaining to the court the constitutional flaws underlying the pardon.

This limit reflects that the pardon power is “limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the ‘individual’ certain fundamental rights.” Hoffa v Saxbe, 378 F.Supp. 1221, 1231 (D.D.C. 1974). In 1998, Justice Stevens wrote that “no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency” because to do so would be to “ignore the commands of the Equal Protection Clause.” Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 292 (1998) (Stevens, J., concurring in part and dissenting in part).

Criminal Prohibitions on Obstruction of Justice and Bribery Further Constrain the Use of Pardons

A third constraint on the pardon power comes from the criminal law.

As one example, it would contradict laws on obstruction of justice to use a pardon to impede or obstruct a criminal investigation. Indeed, the articles of impeachment against Richard Nixon included his “endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.” For a President to leverage “favourable treatment” by issuing or dangling a pardon to influence participants in criminal proceedings could be obstruction of justice and an impeachable offense.

So too, the pardon power cannot permissibly be used in violation of bribery laws. Anti-corruption statutes enacted by Congress prohibit government officials from exchanging official acts for anything of value to either themselves or their family members. See 18 U.S.C. 201. A presidential pardon is most certainly an “official act” and to offer it in exchange for something of value, like favorable testimony or refusal to cooperate, would violate criminal laws.

For example, before Paul Manafort opted to cooperate with the special prosecutor’s office, it was rumored that the President had been mulling a pardon of his former campaign manager in order to coax Manafort to continue stonewalling investigators. Dangling a pardon for the purposes of obstructing of justice could be read within the bribery statute because it is an official act in exchange for something of value.

To be sure, some have argued the pardon power is absolute and supersedes all other constitutional authorities. But this view ignores the system of checks and balances the Constitution establishes, the co-equal powers it bestows upon other branches of government, and the protections it affords to the rights of individuals. A view that the pardon power is absolute is a view that the rest of the Constitution is ultimately subordinate to the President. The pardon power must not stand above any other, lest our nation become accountable not to the law, but to the favor of one man.

That is why a broad and diverse coalition of organizations – including MoveOn, Republicans for the Rule of Law, CREW, Stand Up Republic, Indivisible, and several others – have all come together to lay out some basic limits on the pardon power, along the lines described above.

Any constitutional power, and especially one that impacts the authority of other co-equal branches, must be read within the context of the entire Constitution. The President’s pardon power does not supersede the Constitution’s protections of individual rights or the courts’ ability to enforce those protections. Furthermore, it does not exist to give the President the ability to place himself above the law. Finally, it does not entitle the President to ignore the laws of Congress against obstruction and bribery. The President swears an oath to act in service to the laws of this nation. In a functional democracy, no one person, and no one power, is above another. Our President is no exception.



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