By Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law
Over the past week, President Donald Trump and members of his administration have raised the issue of pardons, with Trump himself tweeting"While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS." In the context of the ongoing investigations into collusion between the Trump campaign and Russian officials, the sudden decision to raise the issue of pardons is significant.
Politically, the timing seems right. Trump and his family and friends face two threats. For the Trump associates there is some possibility of being charged with a crime, while the more likely threat to Trump himself is impeachment. Relating to pardons, those two concerns cut in opposite directions. For the associates, a pardon would save them from the possibility of conviction. For Trump, though, pardons of himself or others might heighten the threat of impeachment. That’s because a backlash against such an abuse of power would hurt Republicans in the House in the 2018 mid-terms... and it is the House that decides whether to impeach the president and send the case to the Senate for trial. If the balance in the House flips or even gets close, the odds of impeachment jump. That means that if he is going to issue pardons, he wants to do it as far in advance of the mid-terms as possible, so that the backlash can fade before we vote. We shouldn’t be surprised he is floating the idea now.
Could he pardon people before they are charged? Of course he could—that’s what Ford did for Nixon. And could he pardon himself? Again, sure he could. He just has to sign a pardon warrant; there is no legislative or court action required. It could be challenged in the courts, perhaps, but that would require establishing standing to challenge the pardon grant (a harder task than some might imagine), and then convincing a conservative Supreme Court to rule against Trump’s action. The last controversy put to the Court with such a loaded political question was Bush v. Gore, and that may give us some idea of how this could play out, as well.
At the same time that he is floating the idea of pardons, Trump seems intent on asserting that the investigations are a “witch hunt,” and that a pardon is unnecessary because he and his associates are innocent and thus will not be charged. That set of ideas falls apart once a charge is filed, of course. At that point, we should anticipate that Trump’s assertions of innocence will become the reason for pardons. If it’s a witch hunt, after all, the charges are bogus and pardons might be warranted in Trump’s mind.
That would be a significant departure from what the pardon power has meant. Clemency is for the guilty, not the innocent.
In the last two years of the Obama administration, this was an often-painful truth that I had to explain constantly. With my students at St. Thomas and through a project I co-founded with Rachel Barkow at NYU, I worked on dozens of clemency petitions in response to Obama’s call for good commutation cases. During that time, I constantly fielded letters urging that we help prisoners who believed they were innocent. I eventually developed a form letter in response, explaining that while many schools had innocence projects, this was a “guilty project” because clemency is meant for those who are not only guilty but who have accepted some responsibility for the crime.
This idea of clemency as a vehicle for mercy rather than exoneration was well-grounded. The Department of Justice’s own website has this to say—right now—about the chances of getting pardoned based on claims of innocence:
The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., "everybody was doing it," or "I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.
Should the rules be different for Jared Kushner or Michael Flynn than they are for an accused and convicted marijuana dealer? Of course not.
If he were to manipulate the pardon power to help himself and his associates, Trump would not be the first to do so. Most recently, George H.W. Bush, Bill Clinton, and George W. Bush all tarnished the pardon power this way. But then history began to turn. Barack Obama, in an imperfect but important project, released over 1,700 federal drug offenders serving long terms—all of them guilty, and none of them related to the president. In serving a larger, selfless goal in his execution of mercy, Obama reclaimed the pardon power as a principled tool of the presidency. Trump now threatens not only a broader sense of justice and his own legacy, but this tentative step towards reclaiming a Constitutional power that had been besmirched.